The Punjab & Haryana High Court was considering a Revision Petition against an order of the Family Court by which the Application filed by the Petitioner for grant of interim custody Plea of the minor child was dismissed.
The Punjab & Haryana High Court declined to transfer the custody of a three-year-old child from the father to the mother, noting that the child is content with the father and moving him at this stage would not serve his best interests.
The Court was hearing a revision plea challenging the Family Court’s order, which had dismissed the petitioner’s request for interim custody of the minor.
The single bench of Justice Vikram Aggarwal observed, “There is an allegation levelled against the petitioner by the respondent about her involvement with another girl. Though, such allegations are common in matrimonial disputes and parties often level allegations and counter allegations, upon interaction with the respondent, it was found to be his concern about the said alleged relationship. Under such circumstances, in the considered opinion of this Court, for the present, the welfare of the child would be to remain with the respondent.”
Facts of the Case
Due to marital differences, the child’s parents initiated divorce proceedings under Section 13-B of the Hindu Marriage Act, 1955. They amicably resolved issues related to dowry articles, alimony, and maintenance. As part of the settlement, the mother handed over custody of the minor child to the respondent and agreed not to claim custody or visitation rights in the future. Both parties were recorded as being bound by this agreement regarding the child’s custody plea.
However, the petitioner later appeared before the Family Court and stated that she no longer wished to proceed with the divorce and sought custody of the child. She claimed that she had been unaware of the full implications of the custody arrangement, alleging her parents had misled her into believing the child was being sent only for a visit. The divorce petition under Section 13-B was ultimately dismissed, and an appeal against the dismissal is currently pending before the Division Bench.
Subsequently, the petitioner filed a custody petition under Section 7 read with Section 25 of the Guardians and Wards Act, 1890. The respondent opposed the petition through a written statement. The petitioner also filed an application seeking interim custody of the minor child, which was similarly contested and ultimately dismissed by the impugned order.
The petitioner’s counsel argued that the child is 3.5 years old, and as per legal principles, custody of children below five years should generally be with the mother. It was contended that a child of such a tender age cannot be separated from the mother, and in the interest of the child’s welfare, interim custody should be granted to her. Reference was made to Section 6 of the Hindu Minority and Guardianship Act, 1956, as well as the Supreme Court’s rulings in Roxann Sharma v. Arun Sharma (2015) and Pushpa Singh v. Inderjit Singh (1990).
Reasoning By Court
At the outset, the Court acknowledged the well-established legal principle that custody of a minor below the age of five typically rests with the mother. However, it emphasized that the issue at hand was whether this case falls under normal circumstances justifying such custody, or whether exceptional factors exist that warrant withholding interim custody from the mother, particularly since the main custody petition is still pending before the Family Court.
Considering the facts of the case, the Court concluded that interim custody should remain with the father. It rejected the petitioner’s claim that the child’s custody was handed over without her knowledge, stating that such a claim was untenable given that the petitioner is a well-educated woman and could not have been misled in such a manner.
The Court also observed that allegations of extramarital affairs are common in matrimonial disputes, and in this case, no specific or substantiated claims had been made by the petitioner.
“The custody of the child is with the father for the last more than one year now. To forcibly give the interim custody of the child to the mother at this stage may have an adverse impact on the mental well being of the child who, as already noted, appeared to be quite comfortable in the custody of the father. Keeping in view solely the welfare of the child in mind at this stage, I do not deem it appropriate to grant the interim custody of the child to the petitioner,” the Court observed.
Accordingly, the petition was dismissed.