Child's discomfort with parent is a necessary factor for determining grant of custody: Patna HC

The Patna High Court recently upheld the decision of a family court granting the custody of a minor daughter in favour of the father. The court observed the daughter did not appear to be quite comfortable with the mother.

The bench of Justice Ashutosh Kumar and Justice Harish Kumar opined, "This may be a temporary circumstance; nonetheless a very necessary ground to be factored in for the Family Court to opine and direct that the girl shall stay with her father".

The mother of the child had moved the high court by filing an appeal against the judgment of the Principal Judge, Family Court, Patna in a Guardianship Case. The family court had opined that it was more beneficial for the child (a girl child aged 6 years) to remain with her father as the brother of the child was already residing with the father.

The family court had, however, allowed visitation rights to the mother during school holidays and important festivals.

The mother challenged the aforesaid judgment contending that the family court had heavily relied on a one-time statement by the girl, who was tutored by her father as also her brother. The girl in her statement before the family court had said that she was not happy with the mother and, if she stays with her, she will have to stay with the stepfather. The girl had also expressed her desire to resider with her father and brother. 

The couple had taken a divorce by mutual consent. At the time of the divorce, it had been decided that the daughter with live with the mother and the son will reside with the father. However, just a year after the divorce, the mother remarried. Subsequently, it was alleged that the girl revealed to her father that the mother used to threaten her and that the stepfather's touch was not natural.  Thereafter, a POCSO case also was registered against the stepfather, which at present was pending.

The high court noted that the family court had recorded the statements of the parties and especially of the girl, who appeared to understand the basic questions which were put to her.

The division bench further highlighted that the family court also took note of the fact that the child had not been studying well while staying with her mother.

The high court also interacted with the children and the parents and held that a just decision had been arrived at by the Family Court, keeping the interest of the girl paramount.

"Under normal circumstances, a girl child would be reared up in a better manner with her mother but in the present circumstances, even if the allegations are not ultimately found to be true, the better place to stay for the girl would be her father’s house as the girl would have the company of her brother," court stressed. 

Case Title: xxx v xxx