The Patna High Court has stated that if a young girl expresses discomfort with residing with her mother, even if it is a temporary situation, it is a crucial factor for the Family Court to consider when determining that the girl should reside with her father. The Court, which has a duty to act in the best interests of the child, must take into account the child’s well-being, happiness, health, education, and the environment in which they live. The Court must therefore be cautious in determining whether the father’s or mother’s claim to custody and upbringing is more favorable for the child.
The wife who appealed the decision of the Family Court in Patna argued that the judgment was not in the best interest of her 6-year-old daughter. The Family Court had previously determined that the girl should stay with her father because her brother was already living with him. The father was granted physical custody of the child, and the mother was given visitation rights during school holidays and festivals at a convenient location in Patna, such as a park, once a month.
Background of the case
The appellant and the respondent, who were married according to Hindu customs, had two children. The respondent initiated divorce proceedings on the grounds of a strained relationship and allegations of infidelity and violence by the wife. During the course of the divorce proceedings, the parties reached an agreement for a mutual consent divorce, with the husband being awarded custody of their son and the wife being awarded custody of their daughter. Both parents were granted visitation rights.
After the divorce, the wife remarried within a week, which caused the husband to become worried about the safety of their daughter in the mother’s care. The daughter also expressed her unhappiness with her mother and stepfather and expressed her desire to live with her brother in her father’s house. The Family Court, taking into account the best interests of the child and the mother’s remarriage, awarded custody of the daughter to the father while granting visitation rights to the mother.
The decision of the court
The court has agreed that the decision made by the Family Court was fair and just, taking into account the best interests of the girl involved. The bench noted that, ordinarily, a girl would be better off being raised by her mother, but in this case, even if the allegations against the father are proven false, the girl’s well-being would be better served by remaining with her father because she would have the support of her brother. Although the girl appeared to have been coached and only expressed concern about being with her brother, who was only five years older, she did not seem entirely at ease with her mother. This could be a temporary situation, but it was an essential factor for the Family Court to consider in determining that the girl should remain with her father.
According to the Patna High Court, if a girl child expresses unease with staying with her mother, even if only temporarily, the Family Court should consider this when deciding to grant custody to the father. The Court, while exercising its parens patriae jurisdiction, should consider the child’s well-being, including her comfort, contentment, health, education, intellectual development, and the environment around her. The Court must carefully balance the father’s claim for custody and upbringing with the mother’s claim.
The court paid close attention to the ruling in Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673, which held that the child’s welfare and best interests should be the primary consideration when deciding custody, rather than the parents’ rights.
The bench ultimately rejected the appeal and concluded that the child would be happier living with her father for the time being. However, the court also made it clear that this decision is not permanent and may be subject to change depending on the child’s wishes in the future. Both parents are required to comply with the Family Court’s visitation orders and ensure that the child’s rights are respected.
Source: https://www.livelaw.in/news-updates/patna-high-court-girl-child-mother-custody-father-225939