Girls Aged 10-15 Yrs Undergo Biological Changes, Can't Be Taken Care Of By Father: Chhattisgarh High Court Grants Custody To Mother
The Chhattisgarh High Court recently refused to grant custody of a minor Hindu girl to her father despite him being a natural guardian, observing that a girl child aged between 10 to 15 years undergoes biological changes which cannot be tended to by the father.A Division Bench of Justice Goutam Bhaduri and Justice Radhakishan Agrawal opined that considering the paramount interest of the child,...
The Chhattisgarh High Court recently refused to grant custody of a minor Hindu girl to her father despite him being a natural guardian, observing that a girl child aged between 10 to 15 years undergoes biological changes which cannot be tended to by the father.
A Division Bench of Justice Goutam Bhaduri and Justice Radhakishan Agrawal opined that considering the paramount interest of the child, it would be proper if the mother holds the custody of the child.
Reiterating the observations made in Balram v. Sushma, the court said:
"It is also important to bear in mind a very germane biological aspect of the matter concerning puberty, privacy and care needed to a girl child at age between 10 to 15 years. At this juncture of life, the girl needs special care and attention of the mother. There are certain biological changes, which a girl child undergoes during this age, which cannot be taken care of by the father."
The appellant-husband and respondent got married in 2009 and a girl child was born in the wedlock after a year. Since the birth of the child, the couple faced some issues in the marriage, which eventually led to them living apart.
After the wife filed a petition for maintenance, the husband moved the Family Court seeking the daughter's custody. He argued that his wife had raised false allegations against him which defamed his reputation in society. It was also pleaded that his wife had "attitude of criminal nature", hence, being a natural guardian, the child should be given to his custody.
However, the wife denied the allegations and argued that the husband took her jewellery, and tortured her physically and mentally for dowry. She also argued that he abandoned her in 2012 without any rhyme or reason and didn't even bother to meet his daughter. She also stated that she is taking care of her daughter as also providing proper education and, therefore, custody of the child may not be granted to the husband.
The Family Court dismissed the husband's application. Aggrieved by this, he moved the High Court.
Advocate A. D. Kuldeep appearing for the appellant/husband submitted that the Family Court ought to have considered the paramount interest of the child and that it failed to appreciate that husband is a natural guardian and entitled to get custody.
Advocate Anil Singh Rajput representing the respondent/wife submitted that the daughter was 12 years old now and that at this stage, the assistance of mother is necessary.
The Court looked into the Guardians and Wards Act and Hindu Minority and Guardianship Act to decide the case. It found that the natural guardians of a Hindu minor are the father and after him, the mother in the case of an unmarried girl; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
The Division Bench also noted that it is well settled that in custody matters, the welfare of the minor child is the paramount consideration. Further, in Goverdhan Lal & Ors v. Gajendra Kumar [AIR 2002 Raj 148], the Supreme Court had held that while dealing with custody cases, due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings.
Therefore, it found that while the ultimate welfare of the child is the dominant factor when the Court is confronted with the conflicting demands made by parents, both demands are to be justified and custody cannot be decided on the legalistic basis.
"...the word 'welfare' used in Section 13 of the Act of 1956 has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Therefore, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases."
Therefore, it held that the appellant's argument that the father is the natural guardian cannot be given preference and welfare of the child would be the paramount consideration. Further, perusal of the evidence revealed that he did not have proper income to maintain his daughter and there was nobody home to take care of his daughter when he was at work. Similarly, no cogent evidence had been brought to prove that his wife had criminal tendencies.
The Bench aIso observed that the child being a 12 year old girl, she needs the attention of a mother since there are certain biological changes at this age, which cannot be taken care of by the father.
As such, the appeal was dismissed.
Case Title: Devnath Ratre v. Malti Ratre
Citation: 2022 LiveLaw (Chh) 83