‘Child not comfortable with her mother’; Patna High Court upholds Family Court’s decision of giving daughter’s custody to her father

Patna High Court

Patna High Court: In a case wherein the wife had challenged the judgment of the Family Court wherein it was held that it would be more beneficial for the child, aged six years to remain with her father as the brother of the child was residing with him, the Division Bench of Ashutosh Kumar* and Harish Kumar, JJ. upheld the Family Court’s decision and observed that the girl did not appear to be quite comfortable with the mother and she would be happier in the house of her father.


The appellant and respondent got married in 2008 but the respondent suspected the fidelity of his wife and was also troubled by her violent behaviour and their relationship at home always remained charged and strenuous. Nonetheless, two children were born from the wedlock but as their relationship was strained, a case of divorce was filed by the respondent. During the pendency of the case, the parties agreed to go for divorce by mutual consent with certain conditions and one of the conditions was that the respondent would have custody of their son and the appellant would keep their daughter with her. They also agreed that the parents would have the right to meet their children. But within seven days of the decree of the divorce, the appellant solemnized marriage with some other person and shortly thereafter, the respondent was denied visitations. On one occasion when the girl accompanied her brother to the house of the respondent and disclosed that the mother used to threaten her and her stepfather’s touch was not natural, the respondent got a whiff that his daughter was not safe with her mother because of her stepfather. Therefore, the respondent refused to let the daughter go to her mother. A POCSO case was also registered against the stepfather, which was pending adjudication.

The Family Court recorded the statement of the girl, wherein she disclosed that she was not happy with the mother and, if she stayed with her, she would have to stay with the stepfather and she also categorically stated that she would like to reside with her brother at her father’s house. The Family Court, after analyzing various provisions of the Guardians and Wards Act, 1890, opined that the best interest of the child would be to allow her to stay with her brother at her father’s house with visitation rights to the mother. The Family Court also observed that the child had not been studying while staying with her mother and in case she likes the company of her brother, who was staying with her father without any complaints, it would be better that the girl accompanies her brother at her father’s house. This decision of the Family Court was challenged before this Court by the appellant.

Analysis, Law, and Decision

The Court opined that under normal circumstances, a girl would be reared up in a better manner with her mother but in the present case, even if the allegations were not found to be true, the better place to stay for the girl would be her father’s house as the girl would have the company of her brother and the girl herself had expressed her desire to stay with her father.

The Court further observed that the girl did not appear to be quite comfortable with the mother and though this might be a temporary situation, but it was a very necessary ground to be factored in for the Family Court to opine and direct that the girl should stay with her father. The Court further examined the certificate given by the Clinical Psychologist who on interaction with the child found that she was having a feeling of inadequacy, insecurity and lack of confidence and she was fearful and was also longing for love. Thus, the psychologist stated that the girl needed emotional support and felt safe with her father and brother. The Court also observed that the psychologist also found that while staying with her mother, the child had not been learning anything.

The Court observed that “the Supreme Court in a number of cases had held that the welfare of the child prevailed over legal rights of the parties”. The Court thus opined that “children were not chattels or playthings for the parents”. The Court relied on Vivek Singh v. Romani Singh, (2017) 3 SCC 231 wherein the Supreme Court observed that “a child feels tormented because of the strained relationship between her parents and ideally needed the company of both. The choice, therefore, before a court was very difficult. However, even in such a dilemma, the paramount consideration was the welfare of the child”.

The Court further opined that “the Court exercising parens patriae jurisdiction must look at the child’s comfort, contentment, health, education, intellectual development, favourable surroundings etc. The Court had thus to tread the delicate path very cautiously while deciding whether the father’s claim in respect of custody and upbringing were superior or the mother’s”. The Court also relied on Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673, wherein it had been held that “the welfare and interest of child and not the rights of parents was the determining factor for deciding the question of custody”. Therefore, the Court opined that the girl would be happier in the house of her father, but this situation was not irreversible and would depend on the will of the child in future. Thus, the Court dismissed the appeal and held that “a just decision had been arrived at by the Family Court by keeping the interest of the girl paramount and there were no reasons to find such opinion to be bad in any manner”.

[X v. Y, 2023 SCC OnLine Pat 1005, decided on 3-4-2023]

Advocates who appeared in this case:

For the Appellant: Advocate Abu Bakar;

For the Respondent: Advocate J.S. Arora;

Advocate Krishna Chandra.

*Judgment authored by: Justice Ashutosh Kumar

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