Child Custody Can Be Granted Based On Present Day Circumstances, Courts Can't Cast Child's Horoscope: Patna High Court

The Patna High Court rejected a father's plea for custody over his minor daughter, after noting that the girl who has been living with her maternal grandfathers since she was an infant, would feel more warmth, affection and sense of security in their company today as compared to living in her father's company. The court however made it clear that it has not observed that the father is unfit to be his minor daughter's legal guardian, who is now 10 years old. A division bench of Justice P. B. Bajanthri and Justice Sunil Dutta Mishra observed, “Presently, the maternal grandparents are alive and fond of this minor child after death of their daughter. The argument that one day or the other the minor has to live with the appellant-father and, therefore, the sooner is better for her. Today, we cannot cast the horoscope of the coming events in the life of child. In the present circumstances, it is not justified in directing the child to be handed over to the father on the basis of an uncertain future. In our view, the sense of security which the child needs, the warmth and affection she can get today would be undoubtedly greater in the company of maternal grandparents than that of the appellant-father. It is however, made clear that it is not held that the appellant is unfit for being the legal guardian of his minor daughter.”The division bench further noted, “It is apparent that the minor child has remained in the custody of maternal grand-parents for a considerable period of time and did not appear to be comfortable in the custody of father and handing over the custody, at this stage, the child will suffer more trauma.” It further underscored that materials available on record–including the Psychological Counselling Report and interaction with the parties and minor child–showed that the maternal grandparents had been taking taking proper care and providing a decent lifestyle, good education and overall intellectual development to the minor girl child. "No doubt, the appellant is natural guardian of the minor daughter, however, the present circumstances necessitate that the minor girl remain in the custody of her maternal grandparents until she attains majority or opts to live with her father thereafter," it added. It also however said that being the natural father, he is entitled to have access to meet the child and it is in the child's best interest to maintain meaningful and regular interaction with her father for her holistic development.The court was hearing an appeal arising from Guardianship Case, wherein the appellant-father challenged the order of the Family Court. The Family Court had rejected his application under Section 25 of the Guardians and Wards Act seeking custody of his daughter, who had been residing with her maternal grandparents since 2016 after the death of her mother.The appellant married the respondents daughter in 2013. In 2015 a daughter was born from their wedlock. He was posted at Delhi where his wife conceived a second time in January 2016. For proper care and delivery of her second child she along with minor daughter went to her parental home at Muzaffarpur in July, 2016 where she met with an accident in bathroom which resulted in injury causing her death on August 8, 2016. The minor daughter remained with her maternal grandparents (respondents) for her better care. In this backdrop, appellant is stated to have got transfer of his posting from New Delhi to Patna in September, 2016. Thereafter, he re-married in 2017 and has a son from his second marriage. The girl child from first marriage of the appellant was staying with her maternal grand parents (respondents) at Muzaffarpur and when the appellant went to meet his minor daughter, he was not allowed to meet and talk with her. When the appellant, after several efforts, did not succeed in meeting and talking with his minor daughter the appellant filed the petition under Section 25 of Guardians and Wards Act for custody of the girl. He contended that the respondents are old aged who are not capable to look after and to provide good life style to the minor child and they are themselves dependent physically and financially on others. It is in the minor girl's welfare that the appellant be granted her custody arguing that he is capable to take care of her in better ways being her natural guardian. In his petition, the appellant claimed that he was the natural guardian of the child under Section 4(c) of the Hindu Minority and Guardianship Act, 1956, and was professionally and financially equipped to provide her with a good life. He cited Section 19(b) of the Guardians and Wards Act to assert that the court cannot override the rights of a living father unless he is proven unfit. He also argued that his remarriage was not a disqualifying factor and contended that the grandparents were aged and not suited to raising a growing child.The respondents countered that the child had always lived with them since her mother's death, was emotionally...

Child Custody Can Be Granted Based On Present Day Circumstances, Courts Can't Cast Child's Horoscope: Patna High Court

Bhavya Singh

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