The Bombay High Court has refused to transfer the interim custody of an 11-year-old girl, who has been living with her neighbours since infancy, to her biological parents. The Court observed that the child had shown “complete indifference” towards her biological parents and had explicitly expressed her preference to remain with the neighbours, and such preference could not be completely disregarded.

Justice N.J. Jamadar was hearing a writ petition filed by the biological parents of the child, challenging the District Court's refusal to grant them her interim custody. The parents claimed that the child had been given to the respondent-neighbour and his wife only on a temporary basis, at the respondent's request, when the child was about three months old, whereas the respondent claimed that the child had been given in adoption in January 2015.

The parents contended that the respondent was neither a relative nor a lawful guardian and that the alleged adoption was not supported by any evidence. They also alleged that the respondent had resorted to fabrication of the record and made false declarations to show that the Respondent and his wife are the parents/guardians of the child.

The Court noted that under Section 25 of the Guardians and Wards Act, the return of a child is subject to the welfare of the child, which is more crucial than the legal right of a guardian to have the custody of the child restored. The Court held that the same principle would apply even where the person having the custody of the child is neither a parent nor a lawful guardian.

The Court further noted that in the interview, the child concerned expressed complete disinclination to join the company of the Petitioners. Though the Court conceded that such indifference could have been a learned trait through the influence of the respondent and his wife on account of their quarrel with the petitioners, the Court observed:

“The child even refused to recognize the Petitioners… the child 'Y' demonstrated complete indifference towards the Petitioners… It could be a learned trait… Nonetheless, it is a fact that the child expressed total disinclination to part with the company of the Respondent and his wife and join the Petitioners.”

The Court held that while the preference of an intelligent child must be considered, such preference was not decisive and the ultimate consideration remained the child's welfare.

The Court noted that the child had been with the respondent and his wife since she was barely two months old and that, for the child, they had been her parents since infancy. It also took note of the fact that the petitioners had not raised an objection for about four-and-a-half years, due to which the child had an impression that the Respondent and his wife were her parents.

“Though the child was young, she appeared to be certain about the preference she was making. Although the wishes of the child are not decisive, yet, her wishes cannot be brushed aside completely as immaterial or inconsequential,” the Court remarked.

After considering various factors, such as the fact of the child residing with the neighbors since the age of two months, the comfort and preference of the child, and the element of stability in the life of the child, the Court held that the transfer of the interim custody of the child, at this stage, would not promote the welfare of the child.

The Court clarified that all the questions including the justifiability of the claim of the Respondent would be open for adjudication before the Court under the GW Act, 1890.

Accordingly, the writ petition was dismissed and the District Judge was requested to decide the main custody application expeditiously, preferably within six months. Until then, the petitioners were allowed to meet the child every Friday and Saturday for three hours.

Case Title: Yogesh Gangaram Sanap v. Anil Mahadev Raghav [Writ Petition No.3975 of 2023]

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