Welfare of child the top priority in custody battle – P&H HC

The P&H HC in a Judgement (Rahul Vs Shalini D.D. 16 Dec 2022) , through Justice Archana Puri, upheld the order of interim custody passed by the learned Additional Principal Judge of the Family Court in a revision petition filed by the petitioner-husband against his wife. Wife had filed a petition under Section 6 of the Hindu Minority and Guardianship Act, 1956, seeking custody of their minor son, Xx. The order allowed her application for interim custody of the child.

The couple had married in February 2018, and their son Xx was born in March 2020. Allegations and counter-allegations of bad behavior and conduct from both parties led to their separation in December 2020, and the filing of Wife’s petition. During the proceedings, the court granted interim custody to Wife, along with visitation rights to Husband, and detailed terms to facilitate Xx's interaction with his father.

Husband filed a revision petition against the interim custody order, which was heard by the P&H High Court. The paramount consideration for a custody dispute is the welfare of the minor child, who requires love, affection, and proper care. The court noted that there can never be a straight jacket formula, even to adjudicate the question of interim custody, and each case must be decided on its peculiar facts and circumstances.

The minor child Xx is less than five years of age. At the time of filing the petition for seeking guardianship, the child was one year and seven months old, and he now requires the love, affection, and proper care that is normally expected from the mother. The Hindu Minority and Guardianship Act reiterates the definition of ‘guardian’ and clarifies that guardianship covers both the person and property of the minor. It states that the father and, after him, the mother shall be the natural guardian of a Hindu. However, the custody of the minor who has not completed the age of five years shall ordinarily be with the mother, as per the proviso to Section 6.

Husband’s counsel submitted that Wife was not suitable to have custody as she had no love and affection for Xx, but there was no material to support this claim. The court noted that the mother has an onerous duty to look after the minor child, and the initiation of litigation shall also not be a sufficient reason to doubt this duty. The paramount consideration at this stage is the welfare of the child. Husband is working in a private sector and may not have ample time to look after the minor child, although his family members are there to take care of Xx. However, other family members of either side cannot take the place of the father or mother.

In conclusion, the P & H High Court upheld the interim custody order of the minor son, Xx, with his mother,  as it is in his best interests.

Rahul Vs Shalini D.D. 16 Dec 2022