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The bench noted that the child was tutored by the mother and the second husband. It was also noted that the mother and the second husband were threatening the child to ensure that he does not meet his biological father.
A division bench of the Bombay High Court comprising Justice Revati Mohite Dere and Justice Gauri Godse recently observed that parents have absolute right over the life and destiny of their children but either parent cannot deprive the child from having the company of another parent.
"It is important to note that where parents would have absolute rights over the destiny and the life of their children, either of the parents cannot behave in such a manner to deprive the child of having the company of the other parent. Such conduct of the parent is against the interest and welfare of the child and is detrimental to the healthy growth of a child," the court observed.
The high court was hearing a habeas corpus plea filed by the father of an 8-year-old child who was studying in Udupi along with their mother and the mother's second husband.
On June 15, 2023, the mother's counsel informed the court that the father could meet the child on June 23rd and 24th from 10 AM to 6 PM.
However, on June 23rd, the court was informed that the father was not allowed to meet his 8-year-old son. In response, the division bench directed the mother to produce the child before the court on July 3rd, 2023. On that day, the wife appeared before the court with her second husband and their son.
The father's counsel informed the court that a custody order was passed by the civil judge in November 2023, granting custody of the child to the mother. However, the civil court allowed the father to meet the child during the festivals of Ganpati, Diwali, Dussehra, Holi, Gudi Padwa, and twice every month. Additionally, clause 7 of the consent terms stated that the child would not be taken out of the station without the father's permission.
After interacting with the child in chambers, the high court expressed displeasure over the conduct of the second husband, who had tutored the child to believe that the petitioner was not their father, but rather the second husband was his father.
The bench in its order also noted that the mother and the second husband were threatening the child to ensure that he does not meet his biological father.
"We were informed by our staff that after our interaction with child when child was asked to sit outside our chamber with the Petitioner, Respondent No. 3 and her second husband were not only threatening the child to ensure that he does not talk to the Petitioner but even reprimanded the child, when he attempted to meet the Petitioner. Their conduct towards the Advocates appearing for respective parties was also aggressive. In view of such conduct of Respondent No. 3 and her second husband, we were required to call the police in our chamber to ensure that Respondent No. 3 and her second husband do not create any untoward incident," the high court noted.
The division bench while allowing the child to stay with his father observed that the court can invoke extraordinary jurisdiction for the best interest of the minor child and every child is entitled to the love and affection of both the parents.
"The law in this regard is very settled that the court can invoke extraordinary jurisdiction for the best interest of a minor child. Every child is entitled to have the love and affection of both parents. A child separated from one parent faces adverse psychological impact. Whenever a question arises before a Court regarding custody of a minor child, the sole and predominant criteria for consideration is only the welfare and best interest of the child," the court observed.
The court in its 3rd July order allowed the father to be with his son till the 6th of July. The high court in its order dated 6th July recorded that the 8-year-old wanted to stay with his father for 2 more days and then go back to Udupi to attend school.
Case title: ABC vs XYZ
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