Bombay High Court: The Division Bench of A.S. Chandurkar and N.B. Suryawanshi, JJ., determined the factors in regard to grant of custody of a minor child.
The instant appeal arose out of the Judgment of Family Court in proceedings filed under Sections 7, 12 and 25 of the Guardians and Wards Act, 1890 for the custody of minor daughter by the respondent (father).
The impugned judgment had allowed the application filed by the father for custody and respondent Sashanka (mother) was directed to handover the custody.
It was noted that Sameera was aged 10 years and in order to ascertain her wishes, Bench interacted with her in the Chambers. She stated that she was comfortable at her father’s place but her attachment with the mother was also explicit and hence she did show a willingness to meet her mother.
Analysis and Decision
The material point for determination:
- Whether Family Court was legally justified in granting custody of Sameera to Prakash?
Evidence placed by Prakash revealed that Sashanka was addicted to smoking and used to drink liquor daily. She also never contributed to any household work. Even after the birth of Sameera, she never took care of the child.
Infact Prakash was the only who took care of Sameera.
One day when Prakash, Sashanka and Sameera all went together with their friends to witness a show of singer Papon, over there Sashanka got heavily intoxicated as she had consumed cocktail and she started yelling.
It was also stated that she was beyond control. After reaching home, Sashanka called her father who demanded her daughter be sent back. Though Prakash refused for the same, later Siva, Sashanka’s brother came over and Sashanka along with her daughter went to her father’s place in Rajahmundry.
Further, it was stated that Sashanka failed to take care of her daughter due to which she developed a deficiency of Vitamin-D and suffered from genu valgum/knock knee disease. In spite of this, Sashanka did not take proper care of Ku. Sameera or took her to an expert Doctor for proper treatment.
Adding to the above, it was stated that the atmosphere at the maternal home of Sashanka was not good for the upbringing of Sameera.
Sashanka further stated that Geeta wife of her brother Siva has initiated proceedings under Section 498-A IPC against Siva, her parents and herself. She further accepted that her brother Siva is charge-sheeted under Sections 420, 467, 468, 471 of IPC in the matter of huge property scam, which is sub-judice.
Trial Court, taking into consideration the fact that Sameera needed proper medical treatment for knock knee and genu valgum under the continuous supervision of Paediatrics, Paediatrics Ortho and Physiotherapist, came to the conclusion that in the interest of the welfare of Sameera, her custody was to be given to Prakash, her father.
Bench stated that it is not basing its’ conclusion only by taking into consideration the better off financial position of father Prakash but is one of the factors amongst others.
Further the Supreme Court’s decision in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, was also relied on wherein the principles in relation to the custody of minor were set out.
In Court’s opinion, Prakash and his parents seemed to be well educated who could give a better upbringing to Sameera.
Hence, Bench stated that the health and comforts of Sameera could be better looked after by father Prakash and his parents. On the comparative assessment of the rival claims for custody of Sameera invariably points out that welfare of Sameera would be better sub-served by father Prakash.
Therefore, the family court rightly and properly appreciated the evidence and granted the custody of the minor to father keeping in mind the welfare of the child.
Additional visiting rights were granted to the mother in view of Sameera’s inclination to meet her mother frequently, for which father would bear the travel and stay expenses.[Sashanka v. Prakash, 2020 SCC OnLine Bom 3497, decided on 27-11-2020]