Minors Can’t Be Treated As Chattel For Claiming Custody: Bombay HC [Read Order]

The Bombay High Court has stayed an order by family court, Bandra, which granted access to the mother of six-year-old girl Janhavi, who has been in her father’s custody since birth.

A vacation bench of Justice AM Badar was hearing a writ petition filed by Janhavi’s father, challenging the said order dated April 25, 2017, wherein the father was directed to give access to the mother during Janhavi’s summer vacation.

Veena Thadari, who appeared for the girl’s father, submitted that on March 23, 2012, Janhavi’s mother deserted her and her husband.

Janhavi was only 2 years then. Thereafter, the father filed for divorce with Janhavi’s mother and also sought permanent custody of his daughter.

While this petition was pending, access was regularly given and Janhavi used to be with her mother on the first and third Saturday, also during her winter and summer vacations.

According to the petitioner’s lawyer, Janhavi was physically abused by her mother on January 28.

Her medical examination confirmed that the six-year-old had suffered “multiple bruises, apart from tenderness over her arms, root of nose and back”.

Again, a similar incident took place on February 18, when Janhavi was found to have suffered contusions.

After this, it was submitted that Janhavi told her father that she did not want to go with her mother as she used to hit her and pinch her.

Meanwhile, the petitioner father filed a plea before the family court to get his daughter evaluated by a child psychologist. It was his contention that his minor daughter is traumatised and hurt by her mother and, therefore, orders granting access to her must be recalled.

Thus, the family court accepted the petitioner’s request and appointed Dr. Harish Shetty, who is a psychiatrist, as Janhavi’s psychologist.

But the petitioner opposed Shetty’s appointment as he was a “psychiatrist and not a psychologist”.

This argument was accepted by the high court after looking at Dr. Shetty’s bio-data.

Upon perusal of all the materials available on record, Justice Badar at the very outset observed: “It is well settled that welfare of minor is paramount consideration for deciding even a temporary custody of a minor. Minors cannot be treated as chattel for claiming custody.”

Although, Janhavi’s mother contended that her daughter was not with her on either of the two dates when the incident of abuse is alleged to have taken place, Justice Badar noted:“Be that as it may, but the case in hand appears to be a clear case of child abuse. Report of her psychological evaluation done by a competent child psychologist will give some clue, as to who was the author of wounds suffered by Ms. Janhavi and the reason of her apprehension and reluctance to join company of her mother. Ms. Janhavi, since her birth, is undoubtedly in custody of her father - the petitioner.   As such, looking to the aspect of her safety and wellbeing, she needs to be continued in his custody till her psychological evaluation by the expert child psychologist for ascertaining her behavioural issues and issue of a child abuse.”

Thus, the order of the family court was stayed and although the petitioner had submitted a list of child psychologists, Janhavi’s mother objected to an appointment from the said list and sought to submit another list of her own.

Hence, a day’s time was given to Janhavi’s mother to submit the list.

Read the Order here.