The Patna High Court has dismissed the appeal against the grant of custody of a minor daughter in favour of the father as the daughter was not comfortable with the mother because she was forced to live with her stepfather.

The Court reiterated the Supreme Court's observation wherein it was held that the welfare and interest of child and not the rights of parents is the determining factor for deciding the question of custody.

The Bench of Justice Ashutosh Kumar and Justice Harish Kumar said that “She did not appear to be quite comfortable with the mother. This may be a temporary circumstance; nonetheless a very necessary ground to be factored in for the Family Court to opine and direct that the girl shall stay with her father.”

The Bench observed that “The Court exercising parens patriae jurisdiction has to look at the child’s comfort, contentment, health, education, intellectual development, favourable surroundings etc. He has thus to tread the delicate path very cautiously while deciding whether the father’s claim in respect of custody and upbringing is superior or the mother’s.”

Advocate Abu Bakar appeared for the appellant-wife and Senior Advocate J.S. Arora appeared for the respondent-husband.

In this case, the Miscellaneous Appeal was filed by the wife challenging the judgment of the Family Court, Patna which held that it was more beneficial and was in best interest of the 6-year-old girl child to remain with her father as the brother of the child was already residing with the father. The appellant was granted visitation rights.

The appellant and respondent got married as per Hindu rites and had two children. The respondent had filed for divorce due to strained relationship and suspicion of infidelity and violence by wife.

Both the appellant and respondent agreed to mutual consent divorce with custody of son to the father and custody of the daughter to the mother, with visitation rights.

However, within seven days of divorce, the wife remarried and the husband became concerned about the safety of the girl and moved a plea before the Family Court for the custody of the girl child.

The High Court said that the decision given by the Family Court was the right decision as under normal circumstances, a girl child would be reared up in a better manner with her mother but in the present circumstances, even if the allegations were not ultimately 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.

Further, the Court relied on several precedents of the Apex Court and reiterated that “welfare of the child prevails over legal rights of the parties. Children are not chattels or playthings for the parents. Absolute right of either of the parents over the life and destiny of children has yielded to welfare and balanced growth of children.”

The Court also placed reliance on Vivek Singh v. Romani Singh, (2017) 3 SCC 231 wherein it was observed by the Supreme Court that "a child feels tormented because of the strained relationship between her parents and ideally needs the company of both of them. The choice, therefore, before a court is very difficult. However, even in such a dilemma, the paramount consideration is the welfare of child."

Accordingly, the Court dismissed the appeal and said that it was absolutely satisfied that the girl will be happier in house of her father at present.

Cause Title- ABC v. XYZ

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