'Far Fetched' To Say That Child Must Study In 'English Medium School' To Progress In Life: Gujarat High Court In Custody Dispute Case

While hearing a custody dispute case, the Gujarat High Court underscored that the welfare of a child cannot be judged by the medium of their school especially when they are toddlers and to say that one needs to study in an English medium school from the beginning to progress in life, is a far fetched argument. 

Noting that the family court had recorded that in the present case the four-year-old girl's custody was taken away by the father "in complicity" with the police, the high court further warned the Police not to be "engineers in the conspiracy" of custody which is best left to be decided by courts and not by "men in uniform".  

The observation came in an appeal moved by the father against the family court's order which had granted custody of the minor daughter to the mother. The father had argued that the daughter should stay with him as there are no English Medium Schools in the area where the mother is residing with child.

Rejecting this contention a division bench of Justice Biren Vaishnav and Justice Maulik J Shelat in its order said,

"It is not fathomable to accept an argument made by learned advocate of Appellant that future of daughter...may be affected as there is no English Medium School in the vicinity or nearby area where the respondent at present is residing with her parents. Welfare of child should not be judged from medium of school especially when child is toddler. It is a far fetched an argument that to progress in life, one needs to study in an English medium school from inception. According to us, medium of school education has no direct bearing on welfare of child. It is not out of place to mention here that maternal grandfather of girl...is a Principal in a School".

It further noted that there were serious allegations against the "father's character". However without delving into it further, the court observed that the mother did have the daughter's custody when she left her matrimonial house, which was "snatched away" from her, "with the complicity of the Police officer" of the concerned police station on November 10, 2022. 

"We are of the firm view that no person should act in a manner not recognized in law. If someone tries to take undue advantage by misusing authority of Police thereby gained in any manner whatsoever then such person can not be allowed to enjoy the illegal gain," it said. 

The high court further in its order made observations on the Police's "conduct", noting that it has been acting nowadays as "instrumental in settling private dispute of parties in a manner not recognized by law". 

"We are conscious of the fact that we are dealing with the child's custody case in dealing with our roster in family matters but here is the case where learned Family Judge while recording the evidence of the parties recorded that the custody of the child, was taken away by a parent in complicity with the Police authorities," the bench said. 

"We may put this order to the notice of the authorities competent i.e., the Secretary, Home Department of the State of Gujarat that the Police personnel in State of Gujarat be warned not to act as agents in such sensitive matters, which deal with the custody of the child and be engineers in conspiracy of custody, which is best left to be decided by Family Courts and not by men in uniform, who abuse their position, particularly, in a case like the present one when the FIR had no relation to matrimonial or custody issues. A writ of this order be send to the Secretary, Home Department of the State of Gujarat for information," it added. 

Background

The parties got married in 2019, their daughter was born in October 2020. After three years, in 2022 the mother left the matrimonial home with the minor daughter. She eventually moved the family court seeking permanent custody of the daughter. She had argued before the family court that the father had started inflicting mental and physical cruelty, was a head strong person, drank alcohol and quarrelled with her ; and so it was not proper for the father to retain custody of the daughter. The family court had eventually granted permanent custody of the daughter to the mother against which the father moved the high court in appeal. 

The mother had also claimed that a "false complaint of theft" was filed against her in November 2022 and she was called to the concerned police station on November 10, 2022 where she was threatened to confess the crime of theft. As she refused to do so, the police took away custody of her daughter and handed over the daughter to the father, she said. 

The father claimed that he is financially more capable of taking care of the daughter and it was in the interest of the child that he be given custody. His counsel further said when the couple were living together, the appellant father's parents noticed that some gold ornaments belonging to the family were missing, as a result of which the FIR was filed alleging that the respondent mother had committed theft. He said that before the complaint was filed the mother had left the matrimonial home on November 5, 2022 with the minor daughter. 

Findings

The high court said that it was apparent from the cross-examination recorded by the family court that though the father had denied he had any connection with a personnel at the concerned police station, "it was admitted that he took the custody of the child i.e., daughter from the police station".

"That when the child...had come with her mother at the police station, the very fact that the father gained custody right under the nose of the police at the police station brings forth the complicity of the officers at police station at Danilimda. The police has acted as agents by misusing their uniform for taking over the custody of the child, which was otherwise under the shelter of the mother – Respondent," it said. 

Without attributing any motives to the criminal case registered against the respondent mother, the bench said that the circumstances, after the mother left the matrimonial home, would indicate that there was a "concerted attempt to malign the character" of the mother. The bench also noted that the family court had after recording the evidence said that it is only concerned with the welfare of the child.

The bench agreed with the family court's decision who recorded that in such unfortunate circumstances the mother ought to be given the child's custody. Dismissing the father's appeal, the bench further quashed the interim arrangement between the parties with respect to where the child will stay during the week. 

Case title: X v/s Y

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