The Bombay High Court recently ruled that the wishes of a child cannot create the sole reason for granting custody to a particular parent.
While dismissing a petition by a father challenging the grant of custody of his minor daughter to the mother, Justice Sharmila Deshmukh held, “In my view, the wishes of the child can be taken into consideration but cannot form the solitary reason for the grant of custody. The Family Court while granting the interim custody to the minor daughter has taken care to ensure that the visitation and access rights of the Petitioner-father are well protected. It has balanced the rights of both parties and has also ensured that the directions are in consonance with the overall welfare of the child.“
The petitioner (father) had challenged an interim order passed by a family court in Bandra, Mumbai granting custody of the daughter to her mother until the divorce proceedings between her parents came to an end.
The father claimed that taking into account the allegations of adultery made against his wife, his daughter would be better off in his house. He further said that his daughter was highly attached to his parents and other members of the family. And that his house is close to her school and place of her extra-curricular activities. He also put a question mark on the atmosphere of her mother’s house as it wasn’t conducive to the welfare of the child.
Moreover, he also referred to the notes addressed to him by his daughter in which she had expressed her wish to stay with him.
The Court, however, concluded that the family court had balanced the rights of both parents after considering the welfare of the child.
Justice Deshmukh, after talking with the child in her chambers, opined that at the age of 8 years, the child was not mature enough to know where her welfare lay.
The Court also opined that the allegations of adultery against the mother had not been conclusively established and that the father couldn’t prove that living with the mother would be detrimental to the moral and ethical welfare of the child.
The Judge further said, “The child has been shifted from her father’s house, where she was residing since her birth to her mother’s house and it will take some time for the child to adapt to the new surroundings. A complaint by the child against one of the parents to the other parent is normal conduct of children and the same cannot be elevated to such an extent as to restore the status quo ante.“
The judge also stated that the girl child aged around 8 years would be undergoing hormonal as well as physical changes. Therefore, at this time, the girl needs her mother the most. And the paternal grandmother or the paternal aunt can’t be a substitute for the mother, who is a qualified doctor.
“During this phase of life, the girl child requires the care and attention of a woman who would be better equipped to understand the process of transformation which the girl child will undergo, and as such, the mother at this stage is preferred against the father.“
Source: https://www.barandbench.com/news/wishes-of-child-cannot-form-solitary-reason-for-grant-of-custody-bombay-high-court
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