Child Can't Be Forced Into Boarding School Amid Custody Battle Between Parents, Psychologically Evaluation Necessary: Allahabad High Court

The Allahabad High Court has held that before issuing a direction to send a child to boarding school amid custody battle between parents, psychologically evaluation of the child is necessary to ascertain whether such child can handle the separation from the parent he/ she has been living with.In a battle for custody and visitation of a minor son between warring parents, the bench of Chief Justice Arun Bhansali and Justice Jaspreet Singh held,“The Court has to ensure that in a legal battle between the conflicting couple, the child is not used as a weapon nor is he victimized. Sending a child to a boarding school cannot be an answer in black and white. It is necessary to psychologically evaluate the child to assess as to whether it is necessary to remove the child from the custody of his mother and put him in a boarding school. How the child will react is an important aspect to be considered before taking such a decision. “The mother and father were married in 2017 and had the detenue-son in 2018. Due to bitterness in relations, they separated and initiated multiple proceedings against each other. The mother moved from Dhanbad, Jharkhand to Lucknow with her son. It was alleged by the mother that on the pretext of taking the son out for a drive in Lucknow, the father took the son out of the protective custody of the mother, to Dhanbad. Accordingly, the mother lodged an FIR against the father and also filed a Habeas Corpus petition before the Allahabad High Court to gain the custody of the minor son. The Single Judge ordered that the custody of the child be handed over to the mother and granted visitation rights to the father. Since the mother was allegedly obstructing the visitation rights of the father, he filed another Habeas Corpus petition which was dismissed on grounds that an application was pending in the earlier petition, which meant that the matter was still alive. It was held that a second habeas corpus petition was not maintainable. A contempt petition was filed by the father against the mother, wherein the mother assured that the order would be complied with. Eventually, the Court dismissed the contempt petition on grounds that special appeals had already been filed by the parties. Meanwhile, various applications were filed by both parents and the details regarding visitation rights of the father were modified by the Court, which were challenged in the intra court appeals by both parents. Despite various efforts of the Court to reconcile the parents for the sake of the child, it failed and the Court directed that in the interim the parties may meet the child together and be civil in the presence of the child. “The warring couple has made allegations and counter allegations against each other, which are basically, factual in nature and can be best appreciated after the parties are permitted to lead evidence. However, the dilemma before this Court is how to secure the best interest of the child amidst the marital conflict,” noted the Court. It noted that the main issue was grant of custody to the father or the request to put the child in a boarding school. Noting that the child had been with the mother for most of his life and was doing well academically in one of the premier schools in Lucknow, the Court observed that had the case been where the parents were residing together and fighting constantly, it would have considered boarding school for the child. It noted that the child did not show any signs of distress while residing with the mother. “The child is about 7 years of age at present and at this stage where there are no accentuating circumstances on record, which can indicate that the child is living in a toxic household with his mother, in such circumstances, uprooting the child from his mother and permitting the custody of the child to the father may not be in the fitness of things especially when the child is accustomed to a life style, is going to school and has friends and is cocooned in his own ecosystem, which is comfortable for him.”Also observing that a petition under the Guardians and Wards Act, 1890 field by the father was pending before the Trial Court, the Court refrained from changing the custody of the child from the mother to the father. On the aspect of moving the child to the boarding school, the Court held that there was no report or opinion on record to show that the child could handle the emotional strain of being physically away from the mother by being put in boarding school. Accordingly, the Court held that such an issue would be open to be decided by the Family Court if reports of experts are placed before it. Noting that the first order for visitation was sufficient and detailed, the Court observed that it hoped that the parties treated the interest of the child paramount and adhered to the orders passed by the Court. Case Title: Dr. Dinesh Kumar Agarwal and others Versus State of U.P. through Principal Secretary (Home) Govt. of U.P., Lucknow and others 2026 LiveLaw...

Child Can't Be Forced Into Boarding School Amid Custody Battle Between Parents, Psychologically Evaluation Necessary: Allahabad High Court

Upasna Agrawal

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