While hearing a custody dispute, the Chhattisgarh High Court recently held that the financial status of a parent or their ability to admit the child to a reputed school are not benchmarks for the happiness of the child [Nimish Agrawal v. Ruhi Agrawal].
A Division Bench of Justices Goutam Bhaduri and NK Chandrawanshi also said that a child may be happy being with a parent having lower financial status and if he is sent to a local school instead of a boarding school, where he would be living away from his family.
“There is no exorbitant difference in between the income and apart from it, it is not that the income of the parent will bring the joy and smile to the face of the child. A child may be comfortable in a company of someone who may have a lower financial status it is always contrary to general expectation. It is not the measurement to be carried out while deciding the custody of the child,” the Court held.
The Bench was hearing a challenge to a family court order that granted custody of a nine-year-old girl to her mother. The father had moved the High Court seeking her custody. He claimed that given his superior financial status, he could get the child admitted to the “best school in India”. However, the Bench ruled,
“It is not a tug of war between wealth and personality traits. Placement of the child in the best boarding school cannot be a benchmark for happiness of a child. A child may be happy in a regional local school in company of the parents instead of living in isolation in the hostel the domino effect may be otherwise. Consequently, we do not agree to proposition that child would get the better development if she is placed in the best school in India according to the father,” the Bench said.
Referring to a number of precedents, the Court held that welfare of the child was of paramount consideration for determining who gets custody. Keeping this in mind, and the fact that the child had earlier expressed that she wanted to live with her mother, the Court held,
“On attaining puberty she may be more frank with her mother and may need her support and the controlling consideration is only the welfare of the child should prevail. It is not the negative test that the father is not unfit or disqualified to have the custody but applying the positive test we are of the opinion that custody would be in the welfare of the minor would be much more with the mother.”
The Court also called for the need to not treat children as commodities in such cases, opining,
“A child being not a property or commodity and the issue relating to the custody of minor and tender aged children have to be handled with love, affection, sentiments and by applying human touch to the problem. Therefore, considering the same and as per the desire of the child, we deem it appropriate that the child would be better in the custody of her mother.”
The Court, however, enhanced the visitation rights of the father, noting that the hours granted by the family court were too meagre.
“The communication will help in maintaining and improving the bond between the child and the parent who is denied the custody. If that bond is maintained, the child will have no difficulty in moving from one home to another during vacations or holidays. The purpose (of visitation rights) as held by the top court is that the courts cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each. The interests of the child are best served by ensuring that both the parents have a presence in his/her upbringing,” the Bench stated.
In fact, the Court highlighted the importance of the child’s bond with her grandparents, who were granted visitation rights along with the father. This, in the Court’s opinion, will be beneficial for the development of the child.
Senior Advocate RP Agrawal along with Advocates Manoj Paranjpe, Rahul Gupta and Vivek Mishra appeared for the husband.
Advocates Gagan Gupta and Jay Deep Singh Yadav represented the wife.
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