To ensure ‘level-playing ground’, SC grants mother child’s custody

Published on 03 Mar 2017 by Team

The Supreme Court on Thursday granted custody of an eight-year-old to her mother on an experimental basis for one academic year, starting April 2017, despite the child’s wish to live with her father whose company she had for over six years. The bench of Justice J Chelameswar and Justice A K Sikri said the mother “deserves a chance” to have custody of the child for a year since she did not have a “level playing ground” with her estranged husband.

It has asked the mother, a teacher in Delhi, to get her daughter admitted to the same school so that she has her “continuous company”. “A child, who has not seen, experienced or lived in the comfort of the company of the mother is, naturally, not in a position to comprehend that the grass on the other side may be greener. Only when she is exposed to that environment of living with her mother will she be in a position to properly evaluate as to whether her welfare lies more in the company of her mother or her father. As of today, the assessment and perception are one-sided,” it held. The court said it would hear the case again in March 2018 to assess how the new arrangement worked out.

The husband had custody of the child since October 2010 when she was 21 months’ old. While the trial court ruled in favour of the father, the Delhi High Court in April 2012 had asked the child to be handed over to the mother. The child, however, remained with the father and the matter went to the Supreme Court in appeal against the high court judgment. On November 23, 2016, the court interacted with the girl who expressed her desire to remain with the father. Subsequently, the bench sought assistance of a trained family court counsellor, who also submitted a report that the child wants to live with her father as she does not want to change her present living environment.

Arguing for the husband, senior lawyer V Shekhar opposed any demand for disturbing the child’s custody against her wishes. Countering this, senior lawyer Geeta Luthra, who represented the wife, contended that with regard to the present age of the child, her welfare demanded that she be under the care and protection of the mother.

The bench described the circumstances of the case “puzzling” and regretted that “the child is often left to grapple with the breakdown of an adult institution”. The child, it noted, was nursed by the mother for the first 21 months when the couple lived together, and that she was deprived of the custody allegedly because the husband drove her out of the house. “The respondent (mother), therefore, cannot be blamed at all, if the custody of the child remained with the appellant (father), after separation of the parties,” said the court.

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