The single judge bench of the Bombay High Court held that the mere desire of a child at a tender age is not the sole factor to be considered for taking a decision in respect of the custody. The child at a tender age is not fully aware of his welfare. There is always a tendency to be with a parent with whom they are residing. They are mostly influenced by tutoring by the parents.
Brief Facts:
The factual matrix of the case is that the husband/appellant and wife/Respondent No. 1 were married as per the Muslim rites. There are two sons and one daughter out of wedlock. The wife lodged an FIR for the offence punishable under Section 498-A, 504, 506 read with Section 34 of the IPC. Thereafter, she was driven out of the house. Furthermore, the wife filed an application under Section 25 of the Guardians and Wards Act, 1980 for custody of the minor children from the husband. The learned District Judge handed over the custody of the children to present respondent No.1. Aggrieved by this, the present appeal is preferred against the judgment.
Contentions of the Appellant:
The Appellant contended that children are doing great at school and the progress report of children in school is not properly appreciated. It was furthermore contended that the wife came to seek custody so much after leaving the house and even the children didn’t want to reside with the mother.
The Appellant relied upon the judgment titled Shazia Aman Khan and Another Vs State of Orissa and others.
Contentions of the Respondent:
The Respondent contended that there exists no female member in the house of the husband who can take care of the children. It was furthermore contended that Financial condition is not the sole criterion when considering the matter of granting custody of minor children.
The Respondent relied upon the judgment titled Rohith Thammana Gowda Vs the State of Karnataka and Ors.
Observations of the Court:
The Hon’ble Court observed that when making a decision on custody, a child's early desires should not be the sole factor taken into account. At this tender age, the child does not fully understand his own well-being. The tendency is always to be with the parents that they live with. Parental tutoring has a major impact on them. Thus, these parents have an impact on interactions with children.
The court furthermore observed that the children are presently living with their father and they stated that they are happy with the father. However, considering the aspect that they are in the custody of the father and as expected, the answer has come in favour of the father.
The court noted that one female child is already staying with the mother, so if all the siblings stay together it would help children grow together.
Based on these considerations, the court was of the view that the findings of the trial court require no interference.
The decision of the Court:
With the above direction, the court dismissed the appeal.
Case Title: Mukhtar V. Habiba
Coram: Hon’ble Mr. Justice Kishore C. Kant
Citation: First Appeal No. 1708 of 2024
Advocate for the Appellant: Mr. Krishna Pratap Rodge
Advocate for the Respondent: Mr. Sayyed Tauseef Yaseen
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