Children's custody cannot solely be decided by interpreting legal provisions but have to be solved with a human touch: Chhattisgarh HC
Sonal Bhargava | Edited by Prabhat Bandhulya
The Chhattisgarh High Court in Nimish S. Aggarwal v. Smt. Ruhi Aggarwal recently stated, when granting custody of a 9-year-old child to his mother, that such situations cannot be determined exclusively on the basis of legal interpretation and require a human touch.
In 2007, the couple married, and a daughter was born out of wedlock. Following that, the two parties' relationship deteriorated, and a series of claims and FIRs were filed. Since the child was in the mother's custody, an application was made under section 25 of the Guardians and Wards Act of 1890. Aggrieved by the family court order, the instant appeal was filed by the father/husband against the order where the father was only granted visitation rights, and the custody was denied. The counsel for the appellants argued that in such cases, the welfare of the minor is paramount, and that the father's financial situation, which has been proven by evidence, would show that the child would be educated in the best school in India, and that she would receive the best education possible. They further claimed that the school where the child was being educated was unregistered and that it was administered by the mother. The Family Court disregarded these factors. The Counsels further contended that, under section 6 of the Hindu Minority and Guardianship Act, custody of a child above the age of five years should generally remain with the father, and that the lower Court had failed to recognise this. The Court cited Nil Ratan Kundu & Anr versus Abhijit Kundu, which held that while determining complex matters about a child's custody, the Court should take into account relevant legislation and the rights that derive from them. The Court further said that the welfare of the child is the most important consideration when parents make conflicting demands. The Court also stated that a child's placement in the top boarding school cannot be used as a criterion for his or her happiness. As a result, the Court rejected the notion that a child's development would be enhanced if she was placed in India's best boarding school. Education and upbringing, it was noted, are two different things that cannot be equated with literacy. Thus, the Court granted the child's custody to the mother, but the father was given visitation rights.