The Chhattisgarh High Court refused to grant custody of a girl child to her father and observed that a girl child aged between 10-15 years undergoes biological changes which needed special care and attention from a mother and cannot be taken care of by the father.

The Bench of Justice Goutam Bhandari and Justice Radhakishan Agrawal held that the welfare of the child is the paramount consideration and it would be proper if the custody was granted to the mother and further observed that "it is also important to bear in mind a very germane biological aspect of the matter concerning puberty, privacy and care needed to a girl child at age between 10 to 15 years. At this juncture of life, the girl needs special care and attention of the mother. There are certain biological changes, which a girl child undergoes during this age, which cannot be taken care of by the father."

In this case, the appeal was preferred by the appellant (father) against the order of the Family Court whereby the custody of the girl child was granted to the respondent (mother). The appellant and respondent got married in the year 2009 and became parents to a girl child one year later. Since the birth of the child, some issues arose between them, and since 2011, they were living separately.

Thereafter, the respondent filed the petition for maintenance for herself and her daughter before the Family Court. And, the appellant then filed an application for the custody of the daughter. The appellant argued that the respondent had made a false allegation against him that he committed torture and cruelty upon her after consuming liquor, which defamed his reputation in society, and that she had an attitude of criminal nature.

The respondent denied the allegations and argued that the appellant had abandoned her since 2012 without any rhyme or reason and that he was very careless as also even not bothered to meet his daughter. She further argued that the appellant was not capable of properly maintaining and educating the child.

Advocate A.D. Kuldeep appeared for the appellant and submitted that the Family Court should have considered the paramount interest of the minor child but had failed to appreciate that husband being a natural guardian was entitled to get custody of the minor child.

Advocate Anil Singh Rajput appeared for the respondent and submitted that the daughter being of 12 years of age, the assistance of the mother was necessary, and father being careless towards the daughter would not be able to provide the comfort that the daughter needed.

The Court relied on various decisions of the Supreme Court and said that the principles in relation to the custody of a minor child were well settled. The Court further referred to the decision of Goverdhan Lal and Others v. Gajendra Kumar AIR 2002 Raj 148, wherein the Court held that "while dealing with the child custody cases, the paramount consideration should be the welfare of child and due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings."

The Court observed that it was the ultimate welfare of the child which would be dominant matter for consideration of the Court when the Court was confronted with the conflicting demands made by parents, both demands are to be justified and cannot be decided on the legalistic basis.

The Court further observed that the Courts had to exercise a jurisdiction which was aimed at the welfare of the child and held that "the word 'welfare' used in Section 13 of the Act of 1956 has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well-being. Therefore, the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases."

Therefore, the Court held that the argument of the appellant that he being the father was the natural guardian, could not be given a preference and welfare of minor would be the paramount consideration.

The Court further, on perusal of evidence, observed that the appellant was not having any proper income to maintain his daughter and that he spent most of the time on duty and moreover, there was no one at his home to take care of his daughter.

Accordingly, the appeal was dismissed.

Cause Title- Devnath Ratre v. Malti Ratre

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