My limited cents;
1. Kindly see media report of Delhi's Trial Courts largese reproduced below (Sir 'Im aware your case is on totally different footing wherein S. 306 IPC as a gender biased IPC section r/w 498a IPC is applied however without prejudice... I quote the reporting here);
Man facing criminal cases gets daughter’s custody
Smriti Singh | TNN
New Delhi: Is a man accused of ‘‘attempt to murder’’ fit to raise a child? Well, a trial court seems to think so. Taking an unconventional stand while awarding the custody of a six-and-a-halfyear-old child to her father, who has three criminal cases pending against him, a trial court affirmed its point of ‘‘not to judge a book by its cover’’.
Holding that a father can only be ‘‘deprived’’ from the custody of the child if the reasons are ‘‘compelling’’, the guardian judge at Tis Hazari recently rejected the plea of the child’s mother seeking custody on the grounds that her estranged husband was a criminal and was not fit to take care of their child.
‘‘Two criminal cases are recently registered against the accused. It cannot be said that he is a habitual offender and his association with the child would be adverse to her interests. It would not be conducive to her welfare if is she is removed from her familiar surroundings,’’ the guardian judge said.
Ahana (name changed) had been staying with her father for the past two years when her mother left her marital home. Her mother moved the court seeking her custody on the grounds that criminal cases were pending against her estranged husband, including that of attempt to murder, which has a maximum punishment of life term. In her petition, she further stated that her husband was ‘‘absconding (from) the process of law and there was no one to take care of her daughter’’.
Ahana’s father, however, opposed the plea saying that he was taking appropriate legal steps for seeking bail in the cases filed against him and he was taking care of his daughter’s ‘‘moral, educational, medical and psychological needs’’. Not satisfied with the arguments, the court called Ahana for a chamber hearing where she expressed her wish to stay with her father.
After going through the girl’s educational record and personal interaction, the court said, ‘‘She (Ahana) preferred to stay with her father. Though she is in tender years but she is intelligent enough to form an opinion with regards to her preferences. The court must pay due regard to her preferences in arriving at a just decision with respect to her custody.’’
Lending a compassionate view to the bond shared between the father and daughter, the court said that it would be right for the child’s well-being to stay with her father and the mother’s application held no merit. ‘‘In my opinion, the father should not be deprived of the custody of the child at this stage,’’ the court added.
2. Sir, you will say in above case access was retained because child was with father. I agree but see the seriousness of IPC similarity to some extent in your and above quoted case reference. So, your question is very good but like other seniors quoted I say it is 50:50 chance in case in hand. You may diagree but then I ask just two questions - what is the age of the child in your case and how long the previous access of father was there before alleged S. 306 happened ?