By observing that the change in custody in the absence of cogent material that too at this interim stage would be against the welfare and mental set up of the child, the Bombay High Court allowed the present petition preferred by the petitioner against the impugned orders passed by the Courts below whereby the Courts directed to handover the temporary custody of the child to the respondent wife
A Single bench of Justice Vinay Joshi allowed the present petition filed by the petitioner against the impugned orders passed by the Courts below whereby the Courts directed to handover the temporary custody of the child to the respondent wife. The Single Judge bench while allowing the same observed that in the matters of custody the factual circumstances relating to the welfare of the child would take precedence.
The present petition was instituted by the petitioner against the impugned orders passed by the Court below whereby the Courts directed to handover the temporary custody of the child to the respondent wife. In pursuance of the same, the petitioner called into question the legality and sustainability of the impugned orders.
Factual matrix of the case was such that the petitioner got married to the respondent on September 7, 2014. Soon after the marriage the couple started residing at Hyderabad. During wedlock they gave birth to a female child on January 1, 2017. Thereafter, the relations between the couple got strained and the respondent started residing with the girl child at her parental house.
On February 27, 2021, the petitioner went to the respondent’s maternal home and took the child under one or the other pretext and never returned. The respondent filed the application under Section 12 of Protection of Women from Domestic Violence , 2005. In said proceedings, she applied for temporary custody of the minor child in terms of Section 21 of the D.V. Act. After hearing both the sides, the Magistrate vide order dated December 24, 2021 granted temporary custody of child to the respondent till the disposal of main petition. The said order was carried by the petitioner in the form of appeal; however the appeal was dismissed through order dated January 1, 2022.
This Court while dealing with the present petition relied on the case of Mausami Moitra Ganguli vs. Jayant Ganguli, wherein it was observed that to impress the welfare child is the paramount consideration in the matters of custody. In view of the same, the Court observed that it is settled law that the question of welfare of the minor child has to be considered on the background of the relevant facts and circumstances. Each case has to be decided on its own facts and the other decided cases can hardly serve the purpose.
The Court is not bound by mere legal rights of the parties, but the factual circumstances relating to the welfare of the child would take precedence. Undoubtedly, nothing can stand in the way of the Court exercising its parens patriae jurisdiction in the matter, the Court further remarked.
Thus in light of the aforesaid observations, the facts of the present case were assessed. The Court noted that from February 27, 2021 till date for the period of 1 year and 4 months, the child was living with the father at Hyderabad. The petitioner/father persistently made out a case that since the child was suffering from various ailments; he took her to Hyderabad for treatment. Noting the above stated facts the Court was of the opinion that there was nothing to suggest that the welfare of the child was at peril, if child lives with the father.
In furtherance of the same, the Court also noted the angle of stability and consistency of the living of the child. The fact that the child dislikes her mother and gave an adverse reaction towards her when interviewed by the Mediator was also put on record before the present Court.
Keeping in mind the peculiar facts of the instant case, the Court concluded by observing that the report of Mediator as well as Protection Officer prima facie assured that the child was comfortable with his father. Thus, change in custody in absence of cogent material that too at this interim stage would be against the welfare and mental set up of the child, the Court remarked. Hence, the impugned orders were quashed and set aside. Accordingly, the petition was allowed.
Case name: SWAPNIL BHAJANDAS KAMBLE V. SAU. MANISHA W/O SWAPNIL KAMBLE
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