In CRIMINAL WRIT PETITION NO. 52/2022-BOM HC- Court is not bound by mere legal rights of parties, but factual circumstances relating to welfare of child takes precedence while considering custody matters: Bombay HC Justice Vinay Joshi [17-06-2022]

Read Order: SWAPNIL BHAJANDAS KAMBLE V. SAU. MANISHA W/O SWAPNIL KAMBLE 

Mansimran Kaur

Nagpur, June 25, 2022: Reaffirming the settled law that the question of welfare of the minor child has to be considered on the background of the relevant facts and circumstances, the Nagpur Bench of the Bombay High has observed that the change in custody in the absence of cogent material at the interim stage would be against the welfare and mental set up of the child.

The Bench of Justice Vinay Joshi allowed the present petition filed by the petitioner against the impugned orders passed by the Courts below whereby the Courts directed to handover the temporary custody of the child to the respondent-wife. The Single Judge bench while allowing the same observed that in the matters of custody the factual circumstances relating to the welfare of the child would take precedence.

Factual matrix of the case was such that the petitioner got married to the respondent  b but soon after the marriage the couple started residing at Hyderabad. During wedlock they gave birth to a female child. Thereafter, the relations between the couple got strained and the respondent started residing with the girl child at her parental house. 

Then, the petitioner went to the respondent’s maternal home and took the child under one or the other pretext and never returned. The respondent filed the application under Section 12 of Protection of Women from Domestic Violence , 2005. In said proceedings, she applied for temporary custody of the minor child and the Magistrate granted temporary custody of child to the respondent till the disposal of main petition. The petitioner/husband challenged the impugned orders passed by both the Courts below directing to handover temporary custody of child to the respondent/wife.

This Court while dealing with the present petition relied on the judgment of the Top Court in Mausami Moitra Ganguli Vs. Jayant Ganguli, wherein it was observed that welfare child is the paramount consideration in the matters of custody. In view of the same, the Court observed, “The Court is not bound by mere legal rights of the parties, but the factual circumstances relating to the welfare of the child would take precedence. Undoubtedly, nothing can stand in the way of the Court exercising its parens patriae jurisdiction in the matter.”

The Court noted that for the period of 1 year and 4 months, the child was living with the father at Hyderabad. The petitioner/father persistently made out a case that since the child was suffering from various ailments, he took her to Hyderabad for treatment. Noting the above stated facts the Court was of the opinion that there was nothing to suggest that the welfare of the child was at peril, if the child continued living with the father. The fact that the child disliked her mother and gave an adverse reaction towards her when interviewed by the Mediator was also put on record before the present Court. 

Considering the peculiar facts of the instant case, the Court observed that the report of Mediator as well as Protection Officer prima facie assured that the child was comfortable with his father. Thus, change in custody in absence of cogent material that too at this interim stage would be against the welfare and mental set up of the child, remarked the. Hence, the impugned orders were quashed and set aside. Accordingly, the petition was allowed.