The Punjab & Haryana High Court has denied handing over custody of a three-year old child from father to mother observing that the child is happy with the father and uprooting him at this stage will not be in his interest.

The Court was considering a Revision Petition against an order of the Family Court by which the Application filed by the Petitioner for grant of interim custody of the minor child was dismissed.

The single bench of Justice Vikram Aggarwal observed, "There is an allegation levelled against the petitioner by the respondent about her involvement with another girl. Though, such allegations are common in matrimonial disputes and parties often level allegations and counter allegations, upon interaction with the respondent, it was found to be his concern about the said alleged relationship. Under such circumstances, in the considered opinion of this Court, for the present, the welfare of the child would be to remain with the respondent."

The Petitioner was represented by Advocate Sanjiv Kumar Aggarwal while the Respondent was represented by Advocate Ankit Chahal.

Facts of the Case

Due to differences, the Parents of the child entered into proceedings for dissolution of marriage under Section 13-B of the Hindu Marriage Act, 1955. They had settled their disputes amicably regarding dowry articles, alimony, maintenance etc. The custody of the minor child had been handed over by the mother to the Respondent and that she would not claim his custody and visitation rights in future. It was recorded that both the Parties would remain bound by the statement relating to the custody of the minor child.

However, later on, the Petitioner appeared before the Family Court and gave a statement that she did not wish to take divorce and that she wanted back the custody of the minor child. The stand taken by the Petitioner was that she had been kept in the dark when the custody of the child was handed over to the Respondent by her parents and she was told that the child would be given to the Respondent only for the purpose of meeting him. Finally, the Petition preferred under Section 13-B of the HMA, 1955 was dismissed and an Appeal against the same was filed which is pending before the Division Bench.

Following this, a Petition under Section 7 read with Section 25 of the Guardians and Wards Act, 1890, seeking custody of the minor child was filed by the Petitioner. The said Petition was opposed by way of a written statement. An Application for the grant of interim custody of the minor child was also moved by the Petitioner which was also opposed by way of a reply. It was dismissed by way of the impugned order.

Counsel for the Petitioner submitted that the minor child is 3.5 years old and the custody of a child below the age of five years should ordinarily be with the mother and that a child of that age cannot live without the mother and for the welfare of the child, it is essential that his interim custody be handed over to the mother. Reference was made to the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956 and the judgment of the Supreme Court in Roxann Sharma versus Arun Sharma 2015 and Pushpa Singh versus Inderjit Singh, 1990

Reasoning By Court

The Court at the outset agreed that it is settled law that the custody of a minor child below the age of five years would ordinarily be with the mother. However, it was of the view that the question before it is as to whether the situation is a normal situation warranting the custody of the minor child to be with the mother or there are certain circumstances out of the ordinary which would impel this Court to not hand over the interim custody of the minor child to the mother at least at this stage, the Petition for custody being pending before the Family Court.

With respect to the case in hand, the Court was of the opinion that the interim custody of the minor child should remain with the father. It rejected the stand taken by the Petitioner that the custody of the minor child was handed over to the Respondent by keeping her in the dark as unacceptable for the Petitioner is a well educated woman and cannot be kept in dark as such.

It also stated that the allegations of affair are pretty common in matrimonial disputes and no specific accusations have been made by the Petitioner in this regard.

"The custody of the child is with the father for the last more than one year now. To forcibly give the interim custody of the child to the mother at this stage may have an adverse impact on the mental well being of the child who, as already noted, appeared to be quite comfortable in the custody of the father. Keeping in view solely the welfare of the child in mind at this stage, I do not deem it appropriate to grant the interim custody of the child to the petitioner," the Court observed.

The Petition was accordingly dismissed.

Case No.- CR-7432-2024

Appearances:

Petitioner- Advocate Sanjiv Kumar Aggarwal, Advocate Tejas Bansal

Respondent- Advocate Ankit Chahal

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Punjab & Haryana High CourtJustice Vikram Aggarwal

Sheetal Joon