The Allahabad High Court while dismissing an appeal said that the mother is the natural guardian of a minor child below 5 years of age and ordinarily, she would be allowed to have the custody of her minor child, unless for specific reasons, a different course is warranted.
The Division Bench of Justice Ashwani Kumar Mishra and Justice Donadi Ramesh passed this order while hearing an appeal filed by Amit Dhama.
The appeal arises out of an order passed by the Family Court, on 31.08.2024 under Sections 7 and 12 of the Guardians and Wards Act, 1890. The order is ex-parte whereby custody of the minor daughter, aged 4 years and 3 months has been handed over to the respondent.
The Court noted that the marriage was solemnized between the appellant and respondent on 23.05.2010. Two children were born out of the wedlock.
Firstly, a son was born on 02.04.2013 thereafter the daughter came to be born on 29.09.2020. Thereafter, differences have arisen between the parties and they are living separately.
Proceeding under Section 13 of the Hindu Marriage Act, 1955 has been instituted by the appellant husband, which is pending. It is at this juncture that the respondent wife has filed petition for custody of the minor daughter, which is allowed by the Family Court.
The Court on previous occasions tried to explore the possibility of amicable resolution of dispute. This Court also interacted with the children but ultimately, no amicable resolution could be worked out. We do not intend to make any comments on the approach of the respective parents during the course of the reconciliation as once it has failed, the Court has to decide the matter on merits.
The Court further noted that the son born out of wedlock is presently studying in a boarding school at Faridabad. The payment of fee and expenses etc. are being borne by the appellant husband. The minor daughter is however living with the father. According to the appellant-husband, he is taking due care of his minor daughter and there is no reason as to why custody of such minor daughter be handed over to the respondent wife.
Counsel for the appellant submitted that the appellant husband is taking due care of the minor daughter and he has sufficient resources available with him to take care of his daughter.
Counsel for the wife submitted that by virtue of Section 6 (a) of the Hindu Minority and Guardianship Act, 1956, the mother would be the natural guardian of minors below the age of 5 years.
Counsel further argued that the mother is a graduate and is living with her parents. It is argued that there is absolutely no good reason for the minor daughter not to be in the company of her mother, and that no circumstances have been pointed out which may justify denial of the custody of the minor daughter to the mother.
On the previous occasions, the Court explored the possibility of amicable resolution of the dispute which has since failed. It is otherwise settled that in the matter of child custody, primary concern is the welfare and well being of the child, the court said.
The Court observed that,
In facts of the case, the Family Court has taken note of the facts and circumstances of the case in order to direct custody of the minor daughter to be given to the mother. Although it is pressed on behalf of the father that the daughter is happily living with him and she would be traumatized if her custody is given to the mother, we are not impressed by this argument. No doubt transfer of custody of a minor may cause psychological stress for the child but the larger issue of custody would require a delicate balancing of interests of the parties. The mother in this case is a graduate and is presently living with her parents. She is all alone in the sense that none of her two children are with her. There are no allegations made against her which may indicate that welfare of the minor daughter would be prejudiced in the custody of the mother. Thus, no good ground is made out for the custody of the minor daughter to be given to the father in the facts of the case.
“Merely because the mother has been deprived of the company of her daughter at the time when the couple separated and the fact that the daughter had continued to be in company of the father for sometime itself would not be sufficient circumstance to deny custody of the minor daughter to the mother who is her natural guardian. Various physical, emotional and psychological needs of the four year old daughter would be better protected in the care and custody of her mother,” the Court further observed while dismissing the appeal.
“The Family Court has otherwise given visitation rights to both parents on a fortnightly basis. In case there is any difficulty or parties desire any change in the terms of visitation it shall be open for them to make appropriate application before the court concerned which would pass necessary orders in respect of alteration in terms of visitation,” the order reads.