New Delhi: The Punjab and Haryana high court, upholding a family court order granting custody of a minor girl to her mother, observed that there are many things that a daughter can’t discuss with her father and “as such mother is the best person to take care of her daughter at growing age”.
According to LiveLaw, the bench of Justice Ashok Kumar Verma and Justice Augustine George Masih opined that during her teen years, a daughter looks to her mother to share and discuss certain issues comfortably.
The high court was dealing with the appeal of the father of a 13-year-old girl, who had challenged the judgment passed by the Gurugram family court allowing his wife to take custody of their progeny.
The family court order was passed in April 2018, after the wife had left her husband and registered an FIR against him and his family. In her petition, the mother had submitted that the father was not taking care of the minor girl and her “schooling and career” would be unsafe.
The father, a practicing lawyer, submitted in the HC that the father is the “natural guardian” of a child and that he has every right to claim the custody of his daughter. The father contended that there would “irreparable damage” to the welfare of the girl if she is allowed to remain with her mother.
The mother’s counsel argued, according to LiveLaw, that for the welfare of the minor daughter, she should remain in her custody. The mother is a well-educated lady and is capable of providing quality education to her daughter and providing a better and safe home to her daughter, which is in her interest and welfare.
‘Judicial discretion’
The court noted that it is not disputed that the father of the minor girl is the natural guardian, though the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
The father has the right of custody unless the court comes to the conclusion that he is “unfit” and it is not suitable for the welfare of the minor to allow the father to exercise his right, the court said.
However, the high court said that in each case, the court has to “see primarily to the welfare of the child in determining the question of his or her custody”.
“It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances,” the court added.
From the depositions made by father before the trial court, the high court said it is evident that he is “very reticent and reclusive type of person who has secluded himself from the social circle and friends”.
“He did not find anything wrong in not allowing the child to any birthday party or for interacting with friends and relatives and neighbours. The child did not even interact with the grand-parents living on the ground floor of the same building. Meaning thereby that when the appellant is out for work, the child is supposed to be all alone on the first floor,” the court observed.
The court added that the mother’s role in the development of a child’s personality can never be doubted and that she shapes a child’s world “from the cradle by rocking, nurturing and instructing her child”.
It added:
“Apart from that, mother is a priceless gift, a real treasure and an earnest heartfelt power for a child, especially for a growing girl of the age of 13 years which is her crucial phase of life being the major shift in thinking biologically which may help her to understand more effectively with the help of her mother and at this crucial teen age, her custody with the mother is necessary for her growth… There would be so many things which a daughter could not discuss with her father and as such mother shall be the best person to take care of her daughter at this growing age.”
It concluded by saying that the all-round welfare and development of the daughter lies with her mother and did not find any “illegality, impropriety, perversity, and irrationality” in the judgment of the family court.
However, though the did not make an appeal for visitation rights to meet his daughter, the court allowed him to visit her daughter twice a month, “preferably on 2nd and 4th Saturday(s) at the place and time mutually agreed between the parties”.
“[K]eeping in view the fact that a child needs the love and affection of both the father and the mother and anticipating optimistically that the girl child may serve as a bridge to fill the gap between the parents and the father-appellant also being the natural guardian of the girl child, the appellant-father is given visitation rights for meeting his daughter,” the court said.