Chhattisgarh High Court | In an appeal related to the custody of a girl child, a Division Bench comprising of Goutam Bhaduri and Radhakishan Agrawal*, JJ., held that the welfare of the child is the paramount consideration and considering the girl child’s best interests to provide special care and attention, custody was granted to the mother.
In the present matter, the appellant (the husband) filed an application under S. 8 of the Guardians and Wards Act, 1890 for grant of guardianship of his daughter from the respondent (the wife). After evaluating evidence provided by both the parties, the Family Court dismissed the application vide order dated 09-10-2018. Aggrieved by the impugned order, the appellant filed an appeal under S. 19 of the Family Courts Act, 1984.
The appellant contended that the best interest of the minor child was not considered by the Family Court. Moreover, the appellant being the natural guardian is entitled to get the custody of a minor child. The appellant further contended that the Family Court failed to consider that wife has an attitude of criminal nature and that he is in better position to provide proper education and bright future to the child.
The respondent contended that the appellant never bothered to meet their child and is very careless towards her. Moreover, the appellant does not have sufficient means of income to provide better education to the child. The respondent further contended that taking into consideration the age of the daughter i.e., 12 years, she needs the assistance of her mother.
The Court observed that law is well settled in relation to the custody of a minor child i.e., paramount consideration is given to the welfare of the child and not to the rights of parents.
The Court relied on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42, Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413, Purvi Mukesh Gada v. Mukesh Popatlal Gada, (2017) 8 SCC 819 and Goverdhan Lal v. Gajendra Kumar, 2001 SCC OnLine Raj 177 where it was held that the paramount consideration should be given to welfare of child while dealing with child custody cases.
“…while dealing with child custody cases, the paramount(sic) consideration should be the welfare (sic) of the child and due weight should be given to child’s ordinary (sic) comfort, contentment, health, education, intellectual development and favourable surroundings.”
The Court also observed that while constructing the meaning of ‘welfare’ under S. 13 of the Hindu Minority and Guardianship Act, 1956, the moral and ethical welfare of the child must also weigh with the Court as well as its physical well-being.
The observed that when the Court is confronted with the conflicting demands of the parents and both are justified demands which cannot be decided on the legalistic basis, then it is the ultimate welfare of the child which would be dominant matter for consideration of the Court. The Court stated that the “averment of the husband that father is the natural guardian cannot be given a preference and welfare of minor would be the paramount consideration.”
While relying on Balram v. Sushma, 2017 SCC OnLine Chh 1247, the Court observed that considering the age of the girl child and the biological changes that she will undergo, the child needs special care and attention of the mother.
“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.”
Dismissing the appeal, the Court held that considering the best interest of the child, the custody of the child is provided to the mother.
[Devnath Ratre v. Malti Ratre, 2022 SCC OnLine Chh 2721, decided on 13-12-2022]
Advocates who appeared in this case:
Mr. A.D. Kuldeep, Counsel for the Appellant;
Mr. Anil Singh Rajpu, Counsel for the Respondent.
*Ritu Singh, Editorial Assistant has put this report together.
