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Observing that a balance needs to be struck between the welfare of the child and the sentiments of parents in custody matters, the Bombay High Court on Friday refused to grant the custody of a six year old boy to his biological parents. The HC said the foster parents, with whom the child has been staying since last six years, were in a better condition to look after the boy.

A bench of Justices Atul Chandurkar and Nitin Suryavanshi said, "Custody of the child is a sensitive issue, which involves sentimental attachments. The welfare of the child has to be considered in the background of the relevant facts of each case. A balance needs to be struck between the attachments and sentiments of the parties towards the child."

The bench was seized with a couple's plea seeking custody of their six year old boy, who was handed over to another couple just within two days of the child's birth.

As per the plea, the biological parents claimed to have a love affair and were blessed with a baby boy. The parents of the biological mother were against the love affair as the couple was not married at the time of the birth.

Accordingly, her father handed over the child to another couple, who looked after the child till date.

As per the biological mother's parents, they were against the love affair and that their daughter was disowned by her lover.

To save the family reputation, the parents handed over the child to the foster parents.

The judges, while considering the plea, noted that the biological father is a rickshaw driver and is already married and has three children from the first marriage.

"His financial condition does not appear to be sound. The biological parents have failed to prove that they were getting steady and regular income," the judges noted.

"Since six years, the child was nurtured and brought up by the foster parents. The child, naturally he is mentally and emotionally attached to the foster parents and has developed a bond with them. They both appear to be in a position to look after the child and to provide adequate facilities to him in proper and congenial manner. They appear to be giving good upbringing to the child," the judges noted further.

The bench further said that if the custody is handed over to the biological parents then it would cause emotional turmoil to the child. "He will be uprooted from the present foster family and the surroundings in which he is brought up and will be required to go in totally alien surroundings and circumstances, in which it would be difficult for him to adjust," the judges held.

The bench further clarified that the only reason for denying custody to the biological parents is that they were not only financially sound and also that the child is emotionally attached to the foster parents.

"Except the child, there is no other responsibility on the foster parents. We clarify here that we are not thinking of the welfare of the child in terms of financial position alone, but it has to be taken into consideration as one of the relevant factor," the bench said.

"The foster parents are taking care of his health, education, intellectual development and are giving him favourable surroundings and they are imbibing moral and physical values in the child. In our considered opinion, they are in a better position to look after the moral and physical welfare check," the judges said.

[This Story First appeared on Free Press Journal]