Mere Desire Of Child To Be With One Parent Is Not A Ground To Decide Custody Matters: Bombay High Court

In a significant order, the Aurangabad bench of the Bombay High Court held that custody matters pertaining to a child cannot be decided merely on the basis of the 'desire' of the child of a tender age since there are possibilities of 'tutoring' the child.

Single-judge Justice Kishore Sant upheld the May 9, 2024 judgment of a Family Court in Aurangabad, which granted custody of two minor boys of 2 and 5 years of age, to their mother. The bench refused to accept the contention of the father, who enjoyed the children's custody until May 2024, that the children 'desired' to stay with him and not with the mother.

"Mere desire of a child at a tender age is not a sole factor to be considered for taking decision in respect of the custody. The child at the tender age is not fully aware of his welfare. There is always tendency to be with parent with whom they are residing. They are mostly influenced by tutoring by the parents. Interaction with child is thus influenced by such parents," the judge said in the order passed on August 28.

In the present case also, the court interacted with the children and they naturally stated that they are happy with the father. "However, it must be considered that presently children are in custody of the father and as expected, answer has come in favour of the father," the judge opined.

So far as better company and care is concerned, the judge noted that almost every member in the family of the father is occupied in business.

"There is only grand-mother of the children who is in the house for whole day. In the house of the mother, she is always at home. She stays with her parents. There are other relatives in the family. So far as deprivation of the company is concerned, it needs to be noted that both the parties are staying in the same town. distance between the houses of husband and wife is not more than 2 km. Thus, visitation by parent would not be much difficult. Husband can always meet children at convenient place," the bench said.

One more factor needs to be considered is that there is one female child who is staying with mother. If all the siblings stay together it would help children in growing together, Court said.

"Being female child she requires care and attention of the mother. Under Muslim Law, custody of the children below 7 years is required to be with the wife," the judge observed.

With these observations, the bench dismissed the father's plea. 

Appearance:

Advocate Krishna Pratap Rodge appeared for the Father.

Advocate Sayyed Tauseef Yaseen represented the Wife.

Cause Title: MS vs HS (First Appeal 1708 of 2024)

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