Trial Court Had Duty To Interview 10 Yrs Old Child & Understand His Desire: Bombay High Court Sets Aside Order Granting Custody To Father

The Bombay High Court set aside a custody order citing the trial court's failure to interview the child to ascertain his wish.

Justice Urmila Joshi Phalke of the Nagpur bench sent the case back to the trial court for fresh consideration observing that the trial court should have conducted an in-camera interview of the child before deciding the matter.

“It was the duty of the trial court to cause appearance of the minor child before the court and hold interview of the child in camera to know a view of the child supposedly with sufficient understanding. Had the trial court held interview, the trial court would have been known several things like desire of the child to come to the conclusion. There is a failure to find out whether the welfare of the child could be found out at the present place of the residence of the opponent/wife.”

The High Court noted that the trial court awarded custody to the father only on the ground that the father is the natural guardian and it is better for the son if the father has his custody.

The trial court was bound to make thorough enquiry to ascertain the welfare of the child, the court held.

The parents of the child married in 2012 and he was born in 2013. Dispute arose and the wife left the husband. He filed for restitution of conjugal rights while she sought maintenance under section 125 of the CrPC.

The husband sought custody on the ground that the wife does not have good economic condition to maintain the child. Further, he is the natural guardian as the child has attained six years of age, he contended.

The husband further claimed that his son is not able to attend the school as his wife has left the matrimonial house with him. He also claimed that his wife does not allow him to visit their son. Further, the son is suffering from serious ailments and his wife cannot give the special care required, he contended.

The notice of husband’s application was served to the wife, but she did not appear before the trial court. The trial court allowed the husband’s application and directed the wife to handover the child's custody to him.

Hence the wife filed the present appeal before the High Court.

The wife submitted that the notice was not served on her properly and hence she had no opportunity to challenge her husband’s application. Further, the trial court did not make required enquiry before and over the custody of child to the husband, she argued.

As per the Bailiff’s report, he visited the wife’s parental home and gave the notice to her father in her presence. Thus, the court said that the notice was properly served to the wife.

The court reiterated that the welfare of the children is the paramount consideration in such matters.

The court said that the word “welfare” in section 13 (welfare of minor to be paramount consideration) of the Hindu Minority and the Guardianship Act, 1956 has to be taken in the widest sense and the moral and ethical welfare of the child must be seen while deciding custody.

“The moral and ethical welfare of the child must be looked into. Though the provisions of the special statutes govern the rights of the parents, the paramount consideration is the welfare of the child. For ascertaining the welfare of the child, the trial court was bound to make thorough enquiry keeping in mind the paramount consideration is the welfare of the child”, said the court.

Thus, the High Court remanded the matter back to the trial court ad directed it to decide the matter expeditiously after giving opportunity to hear to both the husband and the wife.

Case no. – First Appeal No. 1031 of 2022

Case Title – R v. S

Citation: 2023 LiveLaw (Bom) 203