MP HC | Technical objections cannot come in way of custody; Court allows 16-year-old to choose to live with father

Madhya Pradesh High Court: The Division Bench of Subodh Abhyankar and Satyendra Kumar Singh, JJ., dismissed an appeal which was filed being aggrieved ofthe order passed by Single Judge wherein he quashed the earlier impugned order passed by the Sub-Divisional Magistrate whereby custody of the children of the appellant was given to her husband (respondent 4). The Single Judge had only partly granted relief by not giving any express direction restoring the custody of the children in favour of the appellant.

Counsel appearing for the appellant had submitted that despite the petition being allowed and the impugned order being quashed, the appellant/petitioner had got no relief as custody of her both the sons have not been given to her, despite the fact that their custody was illegally obtained by the respondent 4 in the first place.

Counsel appearing for the respondent 4, on the other hand had opposed the prayer and it was submitted that no interference was called for as the aforesaid order had been passed by the Single Judge after having an interaction with the respondent 5 and 6, who had expressed their willingness to reside with their father the respondent 4 only.

The Court was of the view that it was true that both respondent 5 and 6 are minor, however, the age of 16 years is not such an age where a child, given a choice, is not able to make up his or her mind as to his or her inclination to reside with either of the parents. In the present case, this choice has been exercised in favour of the father and thus, despite agreeing with the contentions of the appellant/petitioner regarding the legality of the impugned order, the Writ Court has not found it to be appropriate to hand over the custody of the children to the appellant/petitioner/wife.

The Court observed that in the present case, it was nobody’s case that respondent 4 was in any manner incompetent or was having such vices which may prejudice the interest of the children in his company. Thus, the appeal was dismissed.[Jaya Chakravarti v. State of Madhya Pradesh, 2022 SCC OnLine MP 450, decided on 02-03-2022]


Shri Prateek Maheshwari, Counsel for the appellant.

Smt Archana Kher, Deputy Advocate General for the respondent 1 to 3/State.

Shri A. K. Saxena, Counsel for the respondent 4 to 6


Suchita Shukla, Editorial Assistant has reported this brief.

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