Source: Allahabad High Court 

Why in News? 

Recently, the Allahabad High Court in the matter of Amit Dhama v. Smt Pooja and 2 Others. held that merely because the daughter had been in the father's custody for some time was not sufficient reason to deny custody to the mother.   

What was the Background of the Amit Dhama v. Smt Pooja and 2 Others   Case? 

• The marriage between Amit Dhama (Appellant-husband) and Smt Pooja (Respondent-wife) was solemnized on 23rd May 2010. 
• Two children were born of the wedlock: 
  • A son was born on 2^nd April 2013. 
  • A daughter was born on 29^th September 2020. 
• Marital differences arose between the parties, leading to their separation and living apart. 
• The husband (Appellant) has instituted divorce proceedings under Section 13 of the Hindu Marriage Act 1955 (HMA), which remains pending. 
• The son is currently enrolled in a boarding school in Faridabad, with all educational expenses being borne by the father. 
• The minor daughter, aged 4 years and 3 months was in the custody of the father. 
• The wife (Respondent) filed a petition for custody of the minor daughter under Sections 7 and 12 of the Guardians and Wards Act, 1890. (G & W). 
• The Family Court passed an ex parte order on 31st August 2024, granting custody of the minor daughter to the mother. 
• The husband filed First Appeal before the Allahabad High Court challenging the Family Court's order stating that: 
  • They directed the custody of the minor daughter to be given to the mother. 
  • The court provided for fortnightly visitation rights to both parents. 
• The wife is a graduate by qualification and currently resides with her parents. 

What were the Court’s Observations? 

• The Allahabad High Court made the following observations: 
  • The court attempted multiple times to explore the possibility of amicable resolution between parties, but it failed. 
  • The court directly interacted with the children as part of the proceedings. 
  • Key legal observations:  
    • Mother is legally recognized as the natural guardian of minor children below 5 years of age. 
    • The primary concern in child custody matters is the welfare and well-being of the child. 
    • The psychological stress of custody transfer, while relevant, must be balanced against other interests. 
  • Specific observations regarding the case:  
    • The mother, being a graduate and living with her parents, was viewed favorably. 
    • No allegations were made against the mother that would indicate the daughter's welfare would be compromised in her custody. 
    • The fact that both children were away from the mother was considered. 
    • The court found that various physical, emotional, and psychological needs of the four-year-old daughter would be better protected under the mother's care. 
    • The court dismissed the father's argument that the daughter would be traumatized if custody was transferred to the mother. 
    • The court noted that merely because the daughter had been in the father's custody for some time was not sufficient reason to deny custody to the mother. 
• The High Court upheld the Family Court's order regarding fortnightly visitation rights and allowed parties to seek modification of visitation terms if needed. 

What is the Law Regarding Interim Custody of a Child? 

Section 12 of The Guardians and Wards Act, 1890: 

• This section deals with the power to make interlocutory orders for production of minor and interim protection of person and property.  
• Sub-section(1) of this Section provides the Court may direct that the person, if any, having the custody of the minor, shall produce him or cause him to be produced at such place and time and before such person as it appoints, and may make such order for the temporary custody and protection of the person or property of the minor as it thinks proper.   
• Sub-section (2) of this Section provides that if the minor is a female who ought not to be compelled to appear in public, the direction under sub-section (1) for her production shall require her to be produced in accordance with the customs and manners of the country.  
• Sub-section (3) provides that nothing in this section shall authorize-  
  • The Court to place a female minor in the temporary custody of a person claiming to be her guardian on the ground of his being her husband, unless she is already in his custody with the consent of her parents, if any, or  
  • Any person to whom the temporary custody and protection of the property of a minor is entrusted to dispossess otherwise than by due course of law any person in possession of any of the property.  

What is the Principle of Welfare of Child?  

• Section 13 of Hindu Minorities and Guardianship Act, 1956 (HMGA): 
  • This Section provides that the in the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration. 
• Section 17 of Guardian and Wards Act, 1890: 
  • This Section provides matters to be considered while appointing a guardian.  
  • Section 17 (1) provides that in appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.  
  • Section 17 (2) provides that In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.  
  • Section 17 (3) provides that if the minor is old enough to form an intelligent preference, the Court may consider that preference.  
  • Section 17 (5) provides that the Court shall not appoint or declare any person to be a guardian against his will.    

What are the Case Laws Relating to Custody of Child?  

• Shazia Aman Khan and Another v. The State of Orissa (2024):  
  • Stability and security of the child is an essential ingredient for full development of a child’s talent and personality.  
  • Another principle of law which is settled with reference to custody of the child is the wish of the child, if she is capable of.  
  • The Court held that the welfare of the child has to be seen and not the rights of the parties.
• Ashish Ranjan v. Anupam Tandon (2010):  
  • It is a well settled principle that while determining the question of custody the welfare of the child should be given paramount importance and not the rights of the parents under the statute.   
  • While considering the welfare of the child, the "moral and ethical welfare of the child must also weigh with the court as well as his physical well- being"  
  • The child cannot be treated as a property or a commodity and, therefore, such issues have to be handled by the court with care and caution with love, affection and sentiments applying human touch to the problem.
• Col. Ramneesh Pal Singh v. Sugandhi Aggarwal (2024):  
  • The Court held that the matter of custody should be decided by taking into consideration the following factors:  
    • The socioeconomic and educational opportunities which may be made available to the Minor Children;  
    • Healthcare and overall well being of the children  
    • The ability to provide physical surroundings conducive to growing adolescents but also take into consideration the preference of the Minor Children.