‘No Compelling Reason To Cut Emotional Bond’: Patna High Court Denies Custody To Father, Allows Minor To Stay With Maternal Grandparents
The Court, however, clarified that it had not held the father to be unfit as the legal guardian of his minor daughter.
The Patna High Court dismissed an appeal filed by the father for custody of his minor daughter and observed that, although he was the natural guardian, the child had been living with her maternal grandparents since before her mother’s death, was comfortable in their care, and had expressed unwillingness to stay with her father. The Court held that the emotional bond and security the child received with her grandparents did not warrant disruption, and clarified that it was not held that the appellant was unfit for being the legal guardian of his minor daughter.
The Division Bench of Justice P. B. Bajanthri and Justice Sunil Dutta Mishra observed, “After death of the mother of the child, the respondents willingly undertake to look after the child. Bringing up a child is not only a pleasure but also involves the discharge of a responsible duty. The maternal grandparents of the child appear to be rearing up the child for all these years with great love and affection, and the minor child is found intelligent to form a preference. In the totality of the circumstances, there is no compelling reasons that would justify the cutting of this bond of emotional attachment and security that has been found and has been allowed to grow by the father himself between the child and his grand-parents.”
The Court, however, clarified, “It is however, made clear that it is not held that the appellant is unfit for being the legal guardian of his minor daughter”.
Senior Advocate Nivedita Nirvikar represented the Appellant, while Senior Advocate Rajendra Narain appeared for the Respondents.
Brief Facts
The Appellant and the Respondents' daughter were married in 2013, and a daughter was born to them in 2015. The Appellant was a Bank Manager in the State Bank of India. The appellant was posted in Delhi where the deceased conceived again in January 2016. For proper care and delivery of her second child, she, along with her minor daughter, went to her parental home in July 2016, where she met with an accident in the bathroom, resulting in injuries that caused her death. The minor daughter remained with her maternal grandparents, the Respondents herein, for better care.
During this time, the Appellant was transferred from New Delhi to Patna in 2016, and remarried 2017, and from this second marriage, a son was born. The minor daughter from the first marriage continued staying with her maternal grandparents at Muzaffarpur. When the Appellant went to meet his daughter, he was not allowed to meet or talk with her. After several failed efforts, the Appellant filed a petition under Section 25 of the Guardians and Wards Act, 1890, for custody of the minor daughter.
The Appellant contended that the Respondents were old, incapable of looking after or providing a good lifestyle to the child, and were themselves dependent physically and financially on others. Hence, it was in the welfare of the child to grant custody to the Appellant, who was capable of taking better care as the natural guardian.
The Respondents contended that their late daughter was not happy with the Appellant and that she was serious during pregnancy and, despite medical advice, was taken to her parents’ home by the Appellant, who then returned to Delhi, showing negligence. The Appellant left the minor daughter with them and remarried within a year of his wife's death. They further submitted that Respondent No. 1 was a retired Engineer with an adequate pension, and claimed they were capable of caring for the child and providing a good life.
The Family Court held that although the Appellant was the natural guardian, the custody of the minor daughter would remain with the Respondents until she attained majority, or unless the Respondents were no longer alive, or the minor herself chose to live with the Appellant. The Appellant, along with his second wife and son, was granted visitation rights, which the Respondents were not to oppose. The Family Court further directed that if the Respondents faced difficulty in maintaining the child, they were to hand over custody to the Appellant with prior intimation to the Court.
With regard to the maintenance of the minor daughter, the Family Court directed the Appellant to deposit 10 lakhs in a fixed deposit for 13 years in the minor’s name for her higher education, marriage, or employment, to be withdrawn on attaining majority. He was further directed to deposit Rs.7,000/- per month for her maintenance, with a yearly increment of Rs.500/- until she attained majority, failing which an annual interest of 6% would apply. The minor was also held entitled to her share in the Appellant’s movable and immovable property.
Reasoning of the Court
The Court noted that the minor child was 10 years old and had been living with her grandparents even before her mother’s death, and that she had also expressed her unwillingness to reside with the Appellant, and stated that she was comfortable with the Respondents, where she excelled in her studies and showed good progress. It was further noted by the Court that both parties had argued that the child’s welfare was their paramount consideration. The Court observed, “In matter of custody of a minor child the statutory provisions in favour of father is only one of the circumstances requiring consideration but the major concern of the Court has to be welfare of the child. The welfare, as explained in various judgments, includes not only physical welfare but also moral and ethical welfare…It is well settled that the application for custody of a minor child is in exercise of its parens patriae jurisdiction and the principal consideration of the Court whilst deciding would be the paramount ‘welfare’ of the minor child…”
“The maternal grandparents of the child appear to be rearing up the child for all these years with great love and affection, and the minor child is found intelligent to form a preference. In the totality of the circumstances, there is no compelling reasons that would justify the cutting of this bond of emotional attachment and security that has been found and has been allowed to grow by the father himself between the child and his grand-parents”, the Bench noted.
The Court, however, clarified that the right of the father to claim custody of a minor child was not unlimited and is subject to the welfare of the minor child.
The Court referred to the decision of the Apex Court in Athar Hussain v. Syed Siraj Ahmed & Ors. (2010), where it was held that although the father’s second marriage was not a disentitling factor, it remained an important consideration, and further drew a distinction between guardianship and custody, noting that while the father was found fit to be the guardian and allowed to continue as such, he was denied custody.
The Bench noted that the sense of security, warmth, and affection the minor child needed would undoubtedly be greater in the company of her maternal grandparents than with the Appellant-father. However, it added, “It is however, made clear that it is not held that the appellant is unfit for being the legal guardian of his minor daughter…”
The Bench held, “Keeping in view of the facts and circumstances of the case, at this stage, the welfare of the minor child does not require change of custody from respondents. If custody of the child is immediately transferred to the appellant-father, the child will become miserable as she has lack of affinity towards her father. Moreover, from the materials available on the record including the Psychological Counselling Report and interaction with the parties and minor child, it is found that the respondents have been taking proper care and providing decent lifestyle, good education and overall intellectual development to the minor girl child.”
“No doubt, the appellant is natural guardian of the minor daughter, however, the present circumstances necessitate that the minor girl remain in the custody of her maternal grandparents until she attains majority or opts to live with her father thereafter. Being natural father, the appellant is entitled to have access to meet the child and it is in the child’s best interest to maintain meaningful and regular interaction with her father for her holistic development”, it added.
Consequently, the Court dismissed the appeal, holding that the Family Court’s order did not warrant any interference, and directed the Appellant to comply with the directions passed by the Family Court.
Cause Title: X v. Y (Miscellaneous Appeal No.319 of 2020)
Appearance:
Appellant: Senior Advocate Nivedita Nirvikar; Advocate Shashi Priya
Respondents: Senior Advocate Rajendra Narain; Advocate Jitendra Kumar Roy
