Wishes of child cannot form solitary reason for grant of custody: Bombay High Court

The Bombay High Court recently held that the wishes of a child cannot form the sole reason for granting custody to a particular parent..While dismissing a petition by a father challenging the grant of custody of his 8-year-old daughter to the mother, Justice Sharmila Deshmukh held,“In my view, the wishes of the child can be taken into consideration but cannot form the solitary reason for the grant of custody. The Family Court while granting the interim custody to the minor daughter has taken care to ensure that the visitation and access rights of the Petitioner-father are well protected. It has balanced the rights of both parties and has also ensured that the directions are in consonance with the overall welfare of the child.".The petitioner father had challenged an interim order passed by a family court in Bandra, Mumbai, which granted custody of the daughter to her mother till the divorce proceedings between the parents are concluded. The father claimed that considering the allegations of adultery made against his wife, his daughter would be better off in his house. He said that his daughter was extremely attached to his parents and extended family, and that the house was close to her school and other extra-curricular activities. He also claimed that the atmosphere at the mother’s house was not conducive to the child’s welfare.Further, he referred to the notes addressed to him by his daughter expressing her wish to stay with him..The Court, however, concluded that the family court had balanced the rights of both parties, after considering the overall welfare of the child. .After interacting with the child in her chambers, Justice Deshmukh opined that at the age of 8 years, the child was not mature enough to know where her welfare lay. The Court also opined that the allegations of adultery against the mother had not been conclusively established, and that the father was not able to prove that living with the mother would be detrimental to the moral and ethical welfare of the child. “The child has been shifted from her father’s house, where she was residing since her birth to her mother’s house and it will take some time for the child to adapt to the new surroundings. A complaint by the child against one of the parents to the other parent is normal conduct of children and the same cannot be elevated to such an extent as to restore the status quo ante,” the judge said. .The judge also stated that the girl child aged about 8 years would be undergoing hormonal changes and also physical changes. At this time, the paternal grandmother or the paternal aunt cannot be a substitute for the mother, who is also a qualified doctor. “During this phase of life, the girl child requires the care and attention of a woman who would be better equipped to understand the process of transformation which the girl child will undergo and as such, the mother at this stage is preferred against the father.".[Read order]