According to the parens patriae jurisdiction, the Patna High Court has emphasized that when a girl child expresses discomfort in living with her mother, even if it is a temporary situation, it is a crucial factor that the Family Court must consider when deciding custody.
In making such a decision, the Court must carefully consider the child’s comfort, contentment, health, education, intellectual development, and favorable environment. The Court must tread carefully while determining whether the father’s or the mother’s claim to custody and upbringing is superior.
The wife who was the appellant, had filed a Miscellaneous Appeal contesting the decision of the Patna Family Court. The Family Court had determined that it was in the best interest of the six-year-old girl child to reside with her father since her brother was already living with him. The Family Court had awarded physical custody to the father and allowed visitation rights for the mother during school holidays and festivals at an appropriate location, such as a park in Patna, once a month.
Background of the case
The appellant and respondent were married under Hindu customs and had two children. Due to a strained relationship and allegations of infidelity and violence against the wife, the respondent filed for divorce. In the course of the divorce proceedings, both parties mutually agreed to a divorce with the husband being granted custody of the boy, and the mother being granted custody of the girl, along with visitation rights for both parents.
After getting a divorce, the wife got remarried within a week, which made the husband worried about the safety of their daughter in the mother’s care. Later, the daughter conveyed her unhappiness with her mother and step-father and expressed a desire to live with her brother at her father’s house.
In light of the child’s best interests and the mother’s remarriage, the Family Court awarded custody of the daughter to her father while allowing visitation rights for the mother.
Judgment delivered:
The court endorsed the decision made by the Family Court, which considered the best interests of the girl while making its ruling.
The judges noted that typically a girl child would be better off living with her mother, but given the current situation, the girl would benefit more from living with her father, even if the allegations against her mother were not substantiated. This was because she would have the support of her brother, who was only five years older than her.
Although the girl was not speaking much, and her only request was to be with her brother, the judges observed that she did not seem entirely at ease with her mother. While this might be a temporary circumstance, it was still an important consideration for the Family Court to take into account when deciding to grant custody to the father.
The court emphasized that, based on previous judgements of the Supreme Court, the welfare of the child takes precedence over the legal rights of the parents. It reiterated that children should not be treated as property or toys by their parents, and that the absolute control that parents once had over their children has been replaced by a focus on their well-being and balanced growth.
The judges also referred to the case of Vivek Singh v. Romani Singh (2017) 3 SCC 231, in which the Supreme Court recognized that a child may suffer due to the strained relationship between their parents and ideally needs the support of both. The court acknowledged the difficulty of making a decision in such a situation, but stressed that the welfare of the child should always be the primary concern.
The court reiterated that, according to several judgements of the Supreme Court, the well-being of the child takes precedence over the legal rights of the parents. It emphasized that children should not be treated as possessions or objects of amusement by their parents. The court stated that the absolute control that parents once had over their children has been replaced by a focus on their growth and welfare.
The court also drew on the case of Vivek Singh v. Romani Singh (2017) 3 SCC 231, in which the Supreme Court recognized that a child may suffer due to the strained relationship between their parents and ideally requires the support of both. The court acknowledged that it can be difficult to decide what to do in such cases, but emphasized that the well-being of the child must always be the most important consideration.
Source: https://www.livelaw.in/news-updates/patna-high-court-girl-child-mother-custody-father-225939
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