Denial of custody of the child

By Adv. RS Agrawal

JUSTICE Rajesh S. Patil in the Bombay High Court on April 12, 2024 dismissed a petition in the case of ABC (husband) vs. grounds for not granting authority. The petitioner-husband has been directed to hand over the custody of the minor daughter to the respondent-wife before April 21, 2024. The petition in this case has been filed under Article 227 of the Constitution of India by the husband challenging an order passed. denying his request to modify temporary custody of a 9-year-old daughter. As per the order dated February 9, 2023, the Mumbai Family Court had awarded custody of the 9-year-old daughter to the woman, who is a doctor by profession. The said order of the Family Court was challenged by the husband through WP 2048 of 2023 in the Supreme Court. Initially after filing the petition, when the matter was listed by the husband for urgent orders, the HC had refused to grant any relief to the husband. It is true that on February 24, 2023, the husband transferred custody of the minor daughter to the woman. However, the man was given physical access to the minor daughter on weekends and video access on other days. The writ petition filed by the husband was ultimately dismissed by this court on July 21, 2023. Admittedly, the said order dated 21st July, 2023 became final as the husband had not challenged the said order.

Custody of the minor daughter rested with the woman from February 24, 2023 to February 9, 2024, for a period of approximately one year. On February 9, 2024, as per the previous order, the minor daughter went to the husband’s residence for weekend entry as per the direction passed in the order. Since February 11, 2024 was a Sunday, she was supposed to return to the woman’s residence, but the daughter did not return to the woman’s residence. Subsequently, an interim application was filed by the husband on February 12, 2024 in the order, summons no. 2048/2023. The said interim petition was dismissed by this HC on February 18, 2024, with liberty to approach the Family Court for any form of modification. However, certain interim reliefs were granted by the Supreme Court. The husband then preferred an interim application for modification of custody rights to the Family Court. The said application for amendment was rejected by the Family Court on February 27, 2024. The present WP challenges the order dated February 27, 2024. Since the said order was not substantiated, the earlier protection granted by this Court was continued. . While dismissing the application for modification in the impugned order, the Family Court came to the conclusion that the husband’s mother was a politician and was unable to spend time with/care for the 9-year-old daughter due to her social work . .

The petitioner himself worked at an IT company. For example, his brother and his brother’s wife also worked as accountants at a private company. Therefore, a maid has to take care of the 9-year-old daughter. As for the woman, she is a doctor by profession and has rented a flat near the 9-year-old daughter’s school on leave and license basis. The woman’s mother, who is a housewife, was available to care for the minor daughter along with a maid. The family court also ruled that the minor daughter’s academic performance over the past year was good. Thus, the court also doubted who had written the alleged notes/chits, as the 9-year-old daughter met the man every weekend, just as the woman had doubted the 9-year-old daughter’s handwriting on the said notes/chits. Similarly, the court had responded to the emails written on behalf of the husband by a lady named ‘Neha’. The court also came to the conclusion that in the case of guardianship, the court must take into account the age, gender and emotional, physical and mental development of the child, together with its educational development. Based on these findings, the Family Court denied the request for modification of custody rights.

Both parties were ordered by the Family Court to follow and comply with the order dated February 9, 2023. The HC noted that it had considered the arguments of both parties. There is no doubt that both parents work. It is undisputed that the husband’s mother is a political figure who was previously an MLC. According to the newspaper reports, the husband’s mother is a candidate to contest the Lok Sabha polls. It is on record that the school authorities communicate with the said mother of the husband (grandmother of the 9-year-old daughter) on issues relating to the minor daughter, excluding the parents of the minor daughter. The school authorities have no reason to inform her grandmother about the issues surrounding the minor girl when both her educated parents are available. It has also come to light that although the Family Court granted provisional custody of the minor daughter to the wife on February 9, 2023, and weekend access to the husband; on February 11, 2024, after a period of one year, the man was unable to return custody of the girl to the woman. The said act lasted for seven days and during that period the girl did not attend school.

The Family Court has doubted the handwriting on the alleged cards written by the minor daughter. According to the HC, it becomes worrisome if the husband has brought certain sheets, which according to him, were written by the minor daughter on weekdays and which came into his custody through a friend of the minor daughter. It is highly unbelievable that the minor daughter was with her father from Friday evening to Sunday evening and wrote notes/notes to her father on weekdays. According to the HC, the court must ensure the welfare of the child in every custody case. In this case, the child is a minor girl of pre-pubertal age. There is no reason or change in circumstances why custody should be transferred from the wife to the husband. The accusations of adultery made by the husband have yet to be proven. Based on these allegations, the question whether custody can be transferred to the woman will have no significance. There is no doubt that a bad wife is not necessarily a bad mother.