Granting guardianship of a 9 years old to her mother, the Chhattisgarh High Court has observed that such cases could not be solely decided by interpreting legal provisions. Justice Goutam Bhaduri held that, 'it is a human problem and has to be solved with a human touch.
The father filed an appeal seeking custody of his child against a judgment where visitation rights were denied to him. He got married in 2007 and had a child in 2012. However, they entered into a spiral of allegations and court cases for deteriorating relationships with his wife. For the child's custody, an application was filed under Section 25 of the Guardians and Wards Act, 1890.
The Court perused the procedure for appointment and declaration of guardians (Section 7), persons entitled to apply for an order of guardianship (Section 8), and jurisdiction for the court to deal with procedures of guardianship (Section 9). It also looked at the Hindu Minority and Guardianship Act, 1956 and the related provisions concerning definition (Section 2), who can be a natural guardian (Section 6), powers of natural guardian (Section 8), and the welfare of the minor (Section 13), etc.
Section 26 of the Hindu Marriage Act, 1955 provides custody of children. The Court observed that the said section declares that in any proceeding under the said Act, from time to time, such interim orders as it might deem just and proper concerning custody, maintenance, and education of minor children, consistently with their wishes, wherever possible.
Noting that 'welfare of the child' is the paramount consideration in deciding their custody and not the rights of the parents under a statute. The Court relied on the case of Nil Ratan Kundu & Anr v. Abhijit Kundu (2008), where it was held that in deciding a difficult and complex question as to the custody of a minor, a Court of law should keep in mind the relevant statutes and the rights flowing from that place.
Therefore, the Court held that it is the ultimate welfare of the child which should be the dominant matter when parents make conflicting demands; both demands are to be justified and cannot be decided on a legalistic basis. It remarked,
"The Court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor."
It further held that the word 'welfare' used in Section 13 of the Act must be construed literally and must be taken in its broadest sense - including the moral, ethical and physical welfare.
The Court further observed that the word "after" need not necessarily mean "after the lifetime." Therefore, the averment of the appellant that the father is the natural guardian after five years cannot be given a preference, and the welfare of the minor would be the paramount consideration.
It referred to the case of Nil Ratan Kundu & Anr v. Abhijit Kundu (2008), where it was held that if the minor child is old enough to form an intelligent preference or judgment, the Court must consider such preference as well. However, the final decision should rest with the court as to what is conducive to the welfare of the minor.
The Court considered that when the minor hits puberty, the guardianship of her mother will be more favorable, as she can be franker with her and might need her support. However, it cautioned that the said observation is not the negative test that the father is not unfit or disqualified to have the custody but applying the positive test, that custody would be in the welfare of the minor would be much more with the mother. It remarked,
"A child being not a property or commodity and the issue relating to the custody of minor and tender aged children have to be handled with love, affection, sentiments and by applying human touch to the problem. Therefore, considering the same and as per the desire of the child, we deem it appropriate that the child would be better in the custody of her mother."
On Financial Status
Noting that there is not much difference between the level of income of the two parents, the Court said in addition that the income of the parent will not necessarily bring joy and a smile to the face of the child. Ir remarked,
"A child may be comfortable in the company of someone who may have a lower financial status; it is always contrary to general expectations. It is not the measurement to be carried out while deciding the child's custody. "
The Court also rejected the argument of the appellant that he undertakes to give the child the best education in any school, anywhere in India. The Court remarked,
"It is not a tug of war between wealth and personality traits. Placement of the child in the best boarding school cannot be a benchmark for happiness of a child. A child may be happy in a regional local school in company of the parents instead of living in isolation in the hostel the domino effect may be otherwise."
The Court disagreed with the proposition that a child would get better development if she is placed in the best school in India. It held that education and upbringing are two different aspects of life; education cannot be equated with literacy. It observed,
"The education includes knowing her own culture, family traditions, and the respect for the elders. Consequently, therefore, the ambition expressed by the father would not be a sole criteria and it may prove to be a dilapidated joy ride for children specially in a battle between the parents. The crisis of the like nature would not abate until peace prevails."
The Court refused to consider any such pendency of a criminal case, as it would be beyond the purview of a subject matter to decide the custody battle of a child. It remarked,
"Instead the Court has to balance the need and comfort of the child as the progress of the child has to take place despite all hurdles i.e. battle in between the parents. In a custody battle the Court has to pay heed to the wounds of a child which is at the bottom of the pyramid which is caused by the cases and counter cases in between mother and father."
On Visitation Rights
The Court held that the child was scared of her father and that she was abused when she refused to talk to him could not be a decisive factor in denying even visitation rights to the father.
The Court relied on the case of Yashita Sahu v. The State of Rajasthan, where the apex court noted that in such cases, it is always the child who is the victim in the custody battle. In the fight of egos and increasing acrimonious actions and litigations between two spouses, the parents who otherwise love their child present a picture as if the other spouse is a villain and they alone are entitled to get the custody of the child.
After that, it granted visitation rights to both the father and the grandparents of the child. It also added 'contact rights' to ensure the child's development, when both parents are living separately. It is observed that contact rights in the modern age would be contacted by telephone, e-mail, or in fact, we feel the best system of contact, if available, between the parties, should be video calling.
Case Title: Nimish S. Agrawal v. Smt. Ruhi Agrawal
Citation : 2022 LiveLaw (Chh) 49
Read The Order