Holding the hearing in open court as an exception, the Madhya Pradesh High Court on Wednesday overruled a subordinate court’s ruling granting custody of a three-year-old to the father, upon observing the boy’s fondness for and attachment to the mother.
“Though, this Court is deciding cases through video conferencing only, however, by making an exception, the case was heard in open Court”, said the bench of Justice S. C. Sharma, observing that when “the child was permitted to go to his mother”, he “started playing with the mother”.
“He was very happy with his mother and this Court really fails to understand as to how an observation has been made that in case the child goes with the mother, it will affect the child emotionally and mentally. He is a minor child of very tender age and he is happy with his mother”, opined the Single Judge.
The present Writ Petition arose out of the order dated 06.01.2020 passed by the Principal Judge, Mandsaur, by which, the Presiding Officer in a case under the Hindu Minority & Guardianship Act, 1956, while considering the application under Section 12 of the Act, has granted the custody of the minor child to his father. The High Court was moved on 14.01.2020. Notices were issued in the matter, however, on account of lockdown, the matter was not heard. Finally, the matter was taken up through video conferencing on 25.06.2020 and this Court has directed the father to keep the child present.
In the order delivered on Monday, the Single Bench recorded that the order dated 06.01.2020 passed by the Principal Judge reveals that for the last six months, the child was residing with his father, grandfather and grandmother and after discussing various judgments of the Supreme Court, the Presiding Officer has observed that at this stage if the child is separated from his father, it might adversely affect the mental status of the child. “Except for making such casual observations, no details have been looked into, especially the statutory provision as contained under Section 6 of the Hindu Minority & Guardianship Act, 1956”, noted the Single Judge.
Justice Sharma proceeded to iterate that while “it is true that welfare of the child is of paramount importance keeping in view Section 17 (2) of the Guardian & Ward Act, 1890”, however, “the Court is bound to take a decision after taking into account the age, sex, religion and other factors also”.
In the present case, the Court appreciated that it is dealing with the custody of a minor child, where the wife is also from a well off family, she is able to maintain herself and “it is nobody’s case that the wife doesn’t have the income to look after the child”.
“As the child is happy with the mother, keeping in view the statutory provisions governing the field, the mother is granted the custody of the child”, directed the High Court.
Miscellaneous Petition No.274/2020
Smt. Sonu Bhati v/s Suraj Bhati