Mother Preferred Over Father For Custody Of Girl Child About To Attain Age Of Puberty: Bombay High Court

Observing that paternal grandmother or paternal aunt cannot be a substitute to mother during the phase of growth of a girl child, the Bombay High Court recently held that custody of a girl about to attain the age of puberty is preferred with her mother over her father.

Justice Sharmila U Deshmukh upheld a Family Court's order in a divorce case granting interim custody of an 8-year-old girl to her mother, who is also a doctor, and visitation rights to the father.

“the girl child aged about 8 years would be undergoing hormonal changes and also physical changes and as such much care has to be taken during this phase of growth of the girl child and the paternal grand mother or the paternal aunt cannot be a substitute to the mother who is also a qualified doctor. During this phase of life, the girl child requires care and attention of a women who would be better equipped to understand the process of transformation which the girl child will undergo and as such, the mother at this stage is preferred against the father”, the court held.

The couple got married in February 2010 and had a daughter in January 2015. The husband alleged that he discovered chats in November 2019 indicating his wife’s involvement in extramarital affairs, leading to disputes between them. Subsequently, the wife lodged a Domestic Violence complaint against her husband along with an application for interim custody of the minor child. In January 2020 the husband filed for divorce before the Family Court and sought permanent custody of their minor child.

The Family Court, Bandra awarded interim custody of the girl to her mother and visitation rights to the father. Thus, he filed the present petition challenging the Family Court’s order.

Senior Advocate Rajiv Patil for the husband argued that the minor child's comfort, safety, and convenience should be prioritized. He contended that the child's best interests would be served if she remained with the father, given the support of his joint family. He also claimed that the child had expressed distress and unhappiness in her mother's custody, as evidenced by notes she wrote to her father. The husband further presented a psychiatrist's report indicating the child's emotional distress. He emphasised the allegations of adultery and argued that moral and ethical welfare of the child cannot be safeguarded if the custody is handed to her mother.

Advocate Ashutosh Kulkarni for the wife argued that the order by the Family Court granting interim custody to her was balanced, considering the child's access and visitation rights with the father. He emphasized that the child was at a pre-puberty stage, requiring the care and attention of her mother, who was also a doctor. He further alleged that the father was engaging in parental alienation, poisoning the child's mind against the mother.

Justice Deshmukh recorded that she found the child to be bright after interacting with her in chambers. The girl expressed her desire to be with her father, the court recorded.

However, the court added, “…the question is whether at this tender age the child is blessed with mature thinking so as to make an intelligent preference as regards her welfare. In my view, the answer is in the negative as at this age, the child would normally be driven by her immediate comfort. Her wishes are one of the factors which will be required to be taken into consideration while deciding the present issue”.

The facts narrated in the husband’s divorce petition do not show that any of his family members actively participate in taking care of the child’s day to day needs, the court said. On the other hand, the mother has a part time job, and her presence is assured to take care of the child’s day to day needs as well as her academic pursuits, the court noted.

The court opined that the allegations of adultery are not conclusively established, and at this stage the husband is not able to demonstrate that custody with her mother has been detrimental to the moral and ethical welfare of the child.

The court noted that the child was with her father since December 2019 and the custody has granted to the mother in February 2023. The court recognized the child's adaptation to the new custody arrangement and opined that her complaints are typical of a child's resistance to discipline. The court stressed the importance of nurturing the bond between the child and the mother to prevent parental alienation.

The court reiterated that welfare of a child includes both physical and mental well-being, health, comfort and overall social and moral development.

Thus, court found that the child's welfare was best served by granting interim custody to the mother, considering the child’s age, gender, and the mother's role as a doctor.

Case no. – Writ Petition No. 2048 of 2023

Case Title – ABC v. XYZ

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