The Chhattisgarh HC recently comprising of a bench of Justice Gautam Bhaduri and Justice Sanjay S Aggarwal while setting aside the order of the Family Court, Mahasamund where the custody of a 14-year child was granted in favor of the respondent (father) just on the basis that the mother wears Jeans-t-Shirt, ordered that the child’s custody be handed over to the appellant (mother). (Deepa Nayak v. Pitamber Nai)
The bench remarked, "The character certificate by few of the society members, who might have ostrich mind set, should not be allowed to decide the character of a woman and to draw an inference while deciding the custody of the child that because of the behaviour of mother it would have an adverse impact on the mind of the child. Therefore, considering the entire evidence on record we are of the view that the welfare of the child would hold the sway if the child is kept in the custody of the mother. Accordingly, the direction of the Court below to handover the custody of the child to the father is set aside."
Facts of the case
The couple got a divorce by mutual consent from the Masasamund district after two years of their marriage in 2009. It was then agreed that the child would be in the custody of the mother, who is working in a private firm.
After the child turned 5 years the father/respondent of the child had filed an application under Section 25 of the Guardians Act, 1890, seeking protection of the child. The father had argued in the application given in the family court that the dress of the woman is also not right. The husband also alleged in the application to the family court that the wife was in an illicit relationship. She also consumes alcohol, gutka, cigarette. According to the husband, if the child is kept in her custody, then there will be a bad effect on the child’s mind. On this basis, the family court gave custody of the child to the father.
The order of the family court was challenged by the mother of the child in the High Court.
Contention of the Parties
Learned counsel for the appellant would submit that the Family Court only on the statement of the third person has arrived at a conclusion that the child welfare would be with the father. He would further submit that there is nothing on record to establish the fact except those bald oral statements and to draw inference to assassinate character of wife. He would further submit that the documents of the study of the child would show that the welfare of the child is being taken better than that which is proposed by the father. He further submitted that without evaluating the welfare of the child, the orders have been passed only on the basis of presumption, which requires interference.
Per contra, learned counsel for the respondent/father would submit that the order passed by the Family Court, Mahasamund is well merited which do not require any interference. He further submitted that the evidence of the witnesses would show that the appellant/mother was indulged in relation with the other male members of the society and apart from that the evidence of wife of one Vivek Sharma, with whom the appellant was involved, would show that because of such illicit relation the dispute occurred in between Vivek Sharma and his wife, therefore, the inference can be drawn about the character of appellant and as such the welfare of the child would be better in the custody of the father.
It was stated that the type of behaviour shown publicly by the mother would affect the mind of the child. He would further submit that the evidence of the parties would show that the mother is habituated to intoxication, consumes liquor and other drugs. He further submitted that moral and ethical values have to be embedded in the mind of the child, which would be missing if the child is allowed to continue in the company of the mother.
Courts Observation and Judgment
The bench observed that the evidence led by the witnesses on behalf of the father was based on their own opinions and thoughts.
The bench observed, "There being total conflict between the witnesses on one side and those on other. Therefore, the evidences both pro and contra whether has a bearing upon the issue are to be examined. The evidence on behalf of father it appears that the witnesses have stated according to their own opinion and thought. If the lady is required to do a job that too in the field for her livelihood, naturally she would be required to move from one place to other and only because of the fact that she is required to rub her shoulder with public at large or male i.e. to accompany them in the car, there cannot be an inference that she has lost her chastity. Only bald oral statement is made that she is addicted to consume liquor and smoke etc.
It is important to set a red line when the attack is made to assassinate character of lady. The statement of witnesses of plaintiff would show that they are largely influenced by attire of women as she wears jeans and T-shirt along with the fact that she is marching along with male members of society. We are afraid that if such ill conceived exercise is given a spot light, then to protect the right & freedom of women would be a long arduous battle. If the wife do not squeeze into the mold as per desire of husband, it would not be a decisive factor to lose the custody of the child by her."
The bench further remarked, “It is important to set a red line when the attack is made to assassinate the character of the lady. The statement of witnesses of the plaintiff would show that they are largely influenced by the attire of women as she wears jeans and a T-shirt along with the fact that she is marching along with male members of society. We are afraid that if such an ill-conceived exercise is given a spotlight, then protecting the right & freedom of women would be a long arduous battle. If the wife does not squeeze into the mold as per the desire of the husband, it would not be a decisive factor to lose the custody of the child by her”.
The court further emphasized that if the whole point was to show that due to the character of the wife, the child would be adversely impacted, then the degree of nature of evidence should have been much more & severe to hold that this kind of behavior of wife would be detrimental to the interest of the child.
The bench noted, "Accordingly, the direction of the Court below to handover the custody of the child to the father is set aside."
Read judgment @Latestlaws.com
Picture Source :
