The Patna High Court recently disposed of a civil miscellaneous application filed by the petitioner (husband) in a child custody matter against the order dated January 31, 2017, passed by family court, Patna, in which the husband had been directed to hand over the custody of the minor to the respondent/wife.
The court said, “Custody orders are always considered interlocutory orders and by the nature of such proceedings custody orders cannot be made rigid and final. They are capable of being altered and moulded keeping in mind the needs of the child.”
“A child is not a chattel nor is he/she an article of personal property to be shared, parents are expected to give preference to child’s welfare over own legal rights and the court is required to do something which is in the best interest of the child,” Justice Mishra said.
The single-judge bench of Justice Sunil Dutta Mishra while hearing the application also said, “In the custody battles between the parents, the major sufferers are their children.”
The petitioner and respondent got married on December 15, 2010, and on February 7, 2012, a girl child was born. After some years, due to marital disputes, they decided to dissolve the marriage. They filed a joint petition under section 13-B of Hindu Marriage Act, 1955, on August 21, 2015, before the principal judge, Patna. The parties had agreed that the husband will pay Rs 5 lakh to his wife as full and final settlement and the minor girl will remain with her father. And the same was done on March 5, 2016.
On March 21, 2016, the wife filed a petition to extend the custody of the child to her as well, which was opposed by the husband. On August 2, 2016, the respondent wife filed a petition to withdraw her consent to mutual divorce and to live with her husband. On December 23, 2016, the petitioner filed a petition requesting that his whole money be returned. On January 21, 2017, the respondent filed a response stating that she is willing to reimburse the money in exchange for custody of the girl.
On January 31, 2017, the family court directed the wife to refund Rs 5 lakh to the husband and he was directed to hand over the custody of the minor child to the respondent/wife.
After hearing both parties, the court said that it is firmly established that the first and most important issue in child custody is the child’s welfare and interests, not the parents’ rights. Custody will be given to the individual who fosters the minor child with care, love, and compassion.
“The court must exercise parens patriae (guardian of the kid) authority,” the HC highlighted.
Accordingly, the court disposed of the miscellaneous application and directed the family court to pass a fresh order including interim custody of the child in accordance with the law.
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