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‘Other Family Members Can't Take Place Of Father, Mother’: P&H HC Upholds 3-Yr Old’s Interim Custody To Mother, Says Father May Not Have Ample Time

Rahul Garg
5 Jan 2023 1:00 PM GMT
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Upholding the grant of interim custody of a minor son to his mother, the Punjab and Haryana High Court recently observed that extended family members of the child can never take place of either the father or the mother, when it comes to taking care of the minor.

The court was commenting on the father's argument that his parents and other family members are there to look after the minor child. The bench further said that since he is stated to be working in a private sector, he steps out of the house to follow his avocation and as such, may not be having ample time to look after the minor child.

“Other family members of the either side, cannot take place of father or mother, so far as, taking care of the minor child is concerned. The respondent is staying with her parents and she can provide ample time to look after the welfare of the minor child.”

The couple got married in 2018 but have been residing separately since December 2020. The child, who was born in March 2020, was 1 year and 7 months old when the petition seeking guardianship was filed.

The interim order was passed by the family court during the pendency of the custody case which was originally initiated by the present respondent-mother under Section 6 of the Hindu Minority and Guardianship Act, 1956, seeking custody of the minor son. The father was given visitation rights.

Challenging the order passed by the family court last year, the father of the child told the court that his wife has no love and affection for the child and therefore she is not suitable to have custody of the child.

Reiterating the principle which Courts use in custody matters, Justice Archana Puri said:

“In a custody tussle, each case has to be decided on its own peculiar facts and circumstances, with underlying paramount consideration being the welfare of the minor child. A custody dispute involves human issues, which are always complex and complicated and there can never be a straight-jacket formula, even to adjudicate the question of interim custody.”

The court said Hindu Minority and Guardianship Act provides that the custody of the minor who has not completed the age of 5 years shall ordinarily be with the mother. It observed that the law puts onus upon the father to prove that it is not so in the welfare of the infant child to be placed in the custody of his or her mother.

It further said no material is on record to suggest that mother is not suitable to have custody of the child.

"Learned counsel for the petitioner submits that the petition for seeking custody has been filed after about gap of 10 months, after parting ways. May it be so, as noted above, but this ipso facto, does not challenge the bonafides, on the part of the mother. Even though, indulgence of the respondent in the litigation against the petitioner has been stated to be there, but however, this initiation of litigation, shall also not be 'sufficient reason' to doubt the onerous duty of the mother to look after the minor child. Paramount consideration, at this stage, is the welfare of the child," added the court.

The court said the Additional Principal Judge has appropriately, as per the demand of the situation, given the interim custody to the mother and at the same time also ensured that the minor child has good interaction with the father and therefore, granted visitation rights.

"Thus, the impugned order with regard to the handing over the interim custody to the mother (respondent), calls for no interference, by way of present petition and as such, the present revision petition, sans merit and is hereby dismissed," said the court.

Advocate Pankaj Mahavir Chauhan appeared for the petitioner and Advocate G.C. Shahpuri appeared for the respondent.

Case Title: Rahul v. Shalini

Citation: 2023 LiveLaw (PH) 5

Case No: CR-2579-2022 (O&M)

Coram: Justice Archana Puri

Click Here To Read/Download the Order

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