Child Custody Orders Not Rigid And Final, Capable Of Being Altered Keeping In Mind Needs Of Child: Patna High Court

“Under Section 26 of the Hindu Marriage Act, 1956, the Court has been empowered to pass any order or make any arrangement in respect of custody, maintenance and education of children during the pendency of the proceedings or after any decree is passed under the Act. The orders made under this section can be varied, suspended or revoked from time to time. The object of this section is to make just and proper provision for the welfare of minor child,” it said.

The ruling came on a plea seeking setting aside of an order issued by the Principal Judge of the Family Court in Patna in a matrimonial case. The court had directed the petitioner-husband to hand over custody of their minor child to the respondent-wife.

The husband and wife, who had been married since 2010, sought a divorce by mutual consent in 2015. It was agreed that the husband would pay Rs. 5 lakhs to his wife as a settlement amount, and custody of their daughter would be granted to him. The husband made the payment in 2016, and the minor child was handed over to his custody.

However, the wife later filed a petition, after the divorce, requesting the court to grant her custody of their daughter. The husband opposed this request and also sought a refund of the money paid, citing alleged harassment by the wife and her family members. In response, the wife expressed her desire to reconcile with her husband but insisted on being granted custody of their daughter.

The Principal Judge of the Family Court, in the impugned order, directed the wife to refund the money to the husband and ordered him to hand over custody of the child to the mother.

Advocate Niraj Kumar, representing the petitioner, argued that the lower court had failed to consider the child's welfare and the father's role as the natural guardian. He highlighted the "strong bond and affection" between the petitioner and the child, stating that granting custody to the wife, who had a history of changing her mind, was not in the child's best interest.

Advocate Binod Kumar, counsel for the respondent, contended that it would be in the child's best interest to live with her mother, given the changed circumstances. He argued that the petitioner and his family had neglected their responsibilities towards the child.

Justice Sunil Dutta Misra observed that in the custody battles between the parents, the major sufferers are their children.

"While parents seek divorce by mutual consent they may decide the issue of child custody, however, if the same is not mutually decided then it shall be decided by the Court considering the welfare of child,” said the court

The court noted that the minor child was currently around 11 years old, and the impugned order was issued more than 6 years ago on 31.01.2017. Observing that the circumstances have materially changed since then, the court said it would be better to interact with the child and ascertain her preference regarding which parent she wishes to stay with.

Justice Misra emphasised that a child is not a possession or a personal property to be divided between parents. 

"The court is required to exercise parens patriae (guardian of child) jurisdiction and compel the parties to do something which is in the best interest of the child," the court said, adding earlier there was agreement between the parties with respect to permanent alimony and custody of minor child but now the parties are not mutually agreed on those conditions.

In the changed circumstances, the trial court is required to consider all the aspects of the case and for decision on custody of a minor child, welfare of the child is prime consideration, the court said further.

The court directed the trial court to pass a fresh order on the petitions filed by both parties, including the matter of interim custody of the child, in accordance with law.

"The learned court below is also directed to dispose of the Matrimonial Case expeditiously and both the parties are also directed to cooperate in early disposal of the said Matrimonial Case," it said.

Case Title: Ranjan Kumar Gupta vs. Puja Devi CIVIL MISCELLANEOUS JURISDICTION No.330 of 2018

For the Petitioner/s : Mr. Niraj Kumar, Advocate; For the Respondent/s : Mr. Binod Kumar, Advocate

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