When Girl Child Doesn’t Appear To Be Comfortable With Mother, Necessary For Court To Consider & Grant Custody To Father: Patna High Court

The Division Bench of Justices Harish Kumar and Ashutosh Kumar observed:

“The Court exercising parens patriae jurisdiction has to look at the child’s comfort, contentment, health, education, intellectual development, favourable surroundings etc. He has thus to tread the delicate path very cautiously while deciding whether the father’s claim in respect of custody and upbringing is superior or the mother’s.”

The appellant wife had filed a Miscellaneous Appeal challenging the judgment and order of the Family Court, Patna, which ruled that it would be in the best interest of the 6-year-old girl child to remain with her father as her brother was already living with him. The Family Court had granted physical custody to the father with visitation rights for the mother during school holidays and festivals at a suitable place like a park in Patna, once a month.

Background

The appellant and the respondent, who were married according to Hindu rites, had two children. The respondent filed for divorce due to strained relationship and suspicion of infidelity and violence by the wife.

During the divorce proceedings, the parties agreed to a mutual consent divorce with custody of the boy to the husband and the girl to the mother, with visitation rights for both parents.

However, the wife remarried within seven days of the divorce and the husband became concerned for the safety of the girl in the mother's custody. The girl later expressed that she was unhappy with her mother and step-father, and wished to live with her brother at her father's house.

The Family Court granted custody of the girl to the father with visitation rights for the mother, considering the best interests of the child and the mother's remarriage.

Verdict

The court agreed that the Family Court made a just decision while keeping the girl's best interests in mind.

The bench opined that under normal circumstances, a girl child would be reared better with her mother, but in the current circumstances, even if the allegations are not ultimately found to be true, the girl would be better off staying at her father's house because she would have the company of her brother.

While acknowledging the fact that the girl was not speaking after tutoring or that her only child concern was to be in the company of her brother, who was only five years older to her, the bench further opined,

"She did not appear to be quite comfortable with the mother. This may be a temporary circumstance; nonetheless a very necessary ground to be factored in for the Family Court to opine and direct that the girl shall stay with her father."

Relying on a number of judgements of the apex court, the court reiterated that welfare of the child prevails over legal rights of the parties. "Children are not chattels or playthings for the parents. Absolute right of either of the parents over the life and destiny of children has yielded to welfare and balanced growth of children," it added, while referring to the precedents. 

Further reliance was placed on Vivek Singh v. Romani Singh, (2017) 3 SCC 231, wherein it was observed by the Supreme Court that a child feels tormented because of the strained relationship between her parents and ideally needs the company of both of them. "The choice, therefore, before a court is very difficult. However, even in such a dilemma, the paramount consideration is the welfare of the child."

The bench took special note of the Supreme Court's decision in Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673, in which it was held that the welfare and interests of the child, not the rights of the parents, should be considered when deciding custody.

While dismissing the appeal, the bench said it is absolutely satisfied that the girl will be happier in house of her father at present.

"After having said that, we do indicate that this situation is not irreversible and would depend on the will of the child in future. The visitation rights as directed by the Family Court shall be followed and facilitated by the parties," said the court.

Case Title: JK vs. RS and Anr. Miscellaneous Appeal No.480 of 2022

Citation: 2023 LiveLaw (Pat) 25

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