The Patna High Court recently upheld the grant of custody of a minor child to her father, keeping in mind that the welfare of the child has to be given paramount importance.
A Bench of Justices Harish Kumar and Ashutosh Kumar was hearing an appeal filed by the mother challenging a family court order which held that it would be in the best interest of the 6-year-old girl child to remain with her father, as her brother was already living with him.
By the said order, the father was granted physical custody, while the mother was given visitation rights during school holidays and festivals once a month.
“Children are not chattels or playthings for the parents. Absolute right of either of the parents over the life and destiny of children has yielded to welfare and balanced growth of children,” the High Court order stated.
The Court also clarified that its decision is not irreversible and would depend on the will of the child in the future.
The husband had filed for divorce due to a suspicion of infidelity and violence by the wife. During the divorce proceedings, the parties agreed to divorce by mutual consent. They agreed that the custody of their son would go to the husband and the mother would get custody of the daughter, with visitation rights for both parents.
However, the wife remarried within seven days of the divorce, after which the girl’s father was concerned for the safety of the child in the mother’s custody. Later, the girl also expressed that she was unhappy with her mother and step-father, and wished to live with her brother at her father’s house. The minor girl also complained that the step-father had inappropriately touched her, and that her mother threatened her. A case under the Protection of Children from Sexual Offences (POCSO) Act, 2012 registered against the step-father was pending adjudication.
Thus, considering the best interests of the child and in view of the mother’s remarriage, the family court granted custody of the daughter to her father.
The Court observed that under normal circumstances, a girl child would be reared better by her mother. But in the current circumstances, even if the allegations are not ultimately found to be true, the girl would be better off staying at her father’s house because she would have the company of her brother, it said.
“She did not appear to be quite comfortable with the mother. This may be a temporary circumstance; nonetheless a very necessary ground to be factored in for the Family Court to opine and direct that the girl shall stay with her father,” the Court noted.
Advocate Abu Bakar represented the mother, while Senior Advocate JS Arora and Advocate Krishna Chandra appeared for the father.
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