Children Aged 16 Yrs, Competent To Decide Their Inclination To Reside With Either Parent: Madhya Pradesh HC Refuses To Grant Custody To Mother
The Madhya Pradesh High Court, Indore Bench recently refused to pass an order of child custody in favour of the Appellant-mother, upon noting that the children themselves had expressed their inclination to reside with their father."It is true that both of them are minor, however, the age of 16 years is not such an age where a child, given a choice, is not able to make up his or her mind as...
The Madhya Pradesh High Court, Indore Bench recently refused to pass an order of child custody in favour of the Appellant-mother, upon noting that the children themselves had expressed their inclination to reside with their father.
"It is true that both of them are minor, however, the age of 16 years is not such an age where a child, given a choice, is not able to make up his or her mind as to his or her inclination to reside with either of the parents. In the present case, this choice has been exercised in favour of the father and thus, despite agreeing with the contentions of the appellant/petitioner regarding the legality of the impugned order, the learned Writ Court has not found it to be appropriate to hand over the custody of the children to the appellant/petitioner/wife," division bench of Justice Subodh Abhyankar and Justice Satyendra Kumar Singh observed.
The Bench was essentially dealing with a writ appeal preferred by the Appellant against the order of the Writ Court, whereby it quashed the order of Sub-Divisional Magistrate granting custody of children to the father (respondent no. 4), however, did not explicitly grant custody of the children to her.
The Court noted that ordinarily, when an impugned order is set aside by a higher authority, the status quo, prior to the date of impugned order is restored. However, the present case was not in respect of the any immovable or movable property or any live stock. It pertained to the lives of two human beings, who had expressed their inclinations.
"It is nobody's case that the respondent No.4 (father) is in any manner incompetent or is having such vices which may prejudice the interest of the children in his company. In the considered opinion of this court, had it been a case where the father was not found fit to provide healthy environment to the children's upbringing, this court would certainly have interfered in the impugned order and the choice made by the children, but there are no such facts brought on record by the appellant," the Court ordered.
Facts of the case were that the Appellant had twin sons with her husband, who were around 16 years old. Following a matrimonial dispute, the husband filed before an application SDM concerned, under Section 97 of CrPC, seeking custody of children. The SDM allowed the application and the custody of the children was handed over to the respondent no. 4.
The aforesaid order was challenged by the Appellant/wife before the High Court, whereby the single bench partly allowed the appeal and quashed the order of SDM. It further directed the husband to not force the children to live with him, and that the children were free to live with their mother.
The Appellant argued that despite the petition being allowed by the Writ Court and the impugned order being quashed, she got no relief as the custody of her sons were not given to her explicitly. She prayed for the order to be modified, accordingly to the extent that the custody of the children be handed over to her from the husband.
Per contra, the husband submitted that no interference was called for as the single bench of the Court had passed the order after having an interaction with the children, who had expressed their willingness to reside with their father only. Thus, he argued that the appeal was liable to be dismissed.
Considering the contentions of the parties and the material on record, the Court noted that since the children themselves chose to live with their father, thus, the Writ Court rightly did not find it to be appropriate to hand over the custody of the children to her.
With the aforesaid observations, the Court refused to interfere with the order of the Writ Court and the appeal was accordingly dismissed.
Case Title: Jaya Chakravarti Versus The State of Madhya Pradesh and others
Citation: 2022 LiveLaw (MP) 56