Rajasthan High Court denied granting custody of a 7 year old child to his father, in the background of the fact that the boy was living with his maternal grandparents since his birth, owing to which it was observed that the sudden and abrupt shift would definitely result in mental disturbance which won't be in the child's interest.

At the same time, the division bench of Justice Munnuri Laxman and Justice Sangeeta Sharma allowed visitation and temporary custody rights to the respondent-father in a staged manner, while observing that the father had every right to create an atmosphere such that later, the child could be influenced to shift the custody.

“Learned counsel for the appellants submits that the child is not willing to go with the father even for temporary custody which cannot be accepted. At the initial stage, the child may not go abruptly, but during the course of development of family bonding, the child may show the inclination to join the father. This can only happen when an atmosphere is created to develop the bonding between the father and the son.”

For context, the child's material grandparents-petitioners had filed an appeal against the order of the Family Court wherein respondent's application seeking custody of his son was allowed.

It was petitioners' case that the child was living with them since his birth, and was not willing to go to the respondent. If the custody was handed over, it would cause great disturbance to the child. It was further submitted that the respondent was addicted to alcohol.

After hearing the contentions, the Court opined that right of a guardian to have custody was subservient to the welfare of the child. Further, it was highlighted that no access was made by the respondent to the child for more than 7 years, hence, the child was not inclined to shift with his father.

In this light, it was held that shifting the custody to the father was not in the minor's interests since that might result in unforeseen consequences, impacting mental condition of the child.

“No doubt, the father may be financially sound, but the legal right of the father and his financial ability are not the sole criteria for determination of the welfare of the child. The surrounding family environment in which the child has grown up is also a relevant factor and the time period spent by the child with the grandparents is also relevant and the same cannot be ignored.”

At the same time, the Court held that the petitioners could not deny father's right to have access to the child. The family bonding could be developed only by giving certain congenial atmosphere like giving visitation and temporary custody rights.

In this background, the Court partly allowed the appeal by rejecting immediate custody to the father, while allowing certain visitation and temporary custody rights to be executed in a staged manner.

Counsel for Appellants: Ms. Apeksha Chhangani (Through VC); Ms. Anjali Garg

Counsel for Respondents: Mr. Praveen Dayal Dave; Ms. Ruchi Padiyar; Mr. Pradyum Patel; Mr. Rajendra Singh