Child’s Wishes Can’t be Considered a Solitary Reason for Grant of Custody: Bombay High Court 

The Bombay High Court recently held that the wishes of a child cannot come up as the sole reason for granting custody to a particular parent.

While dismissing a father’s petition challenging the grant of custody of his minor daughter to her 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 had challenged an interim order passed by a family court in Bandra, Mumbai which had granted custody of the daughter to her mother until the divorce proceedings between her parents ends.

The father claimed that since his wife is alleged to be in adultery, his daughter would be well off in his house. He also argued that his daughter was extremely attached to his parents and other family members, and also his house was close to her daughter’s school and extra-curriculum activities. He also claimed that the atmosphere in his wife’s house was not conducive to the welfare of the child.

He further referred to the notes addressed to him by his daughter through which she expressed her wish to stay with her father.

The Court, however, concluded that the family court had equally balanced the rights of both the parties (husband and wife), post considering the overall welfare of the child.

After interacting with the child in her chambers, Justice Deshmukh opined that at the mild age of 8 years, the child was not mature enough to decide where her welfare lay.

The Court also opined that the allegations of adultery against the mother had not been conclusively proved and that the father was not able to prove how living with her mother would be detrimental to the moral as well as ethical welfare of the child.

The Judge stated, “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 who is about 8 years is at a phase of life where she would be undergoing hormonal as well as many physical changes. During this period of life, a girl needs her mother the most, and not a parental grandmother or the paternal aunt can be a substitute for the mother. In this case, the more is even more irreplaceable since she 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