Bombay HC Emphasizes Child’s Wish Alone Insufficient for Custody Determination

The Bombay High Court has recently emphasized that the wish of a child should not be the sole determinant when awarding custody to a specific parent.

A single-judge bench of Justice Sharmila Deshmukh, while dismissing a father’s petition challenging the custody grant of his 8-year-old daughter to the mother, stated:

“While the wishes of the child can be considered, they cannot be the sole basis for custody. The Family Court, in granting interim custody of the minor daughter to the mother, has taken steps to safeguard the visitation and access rights of the petitioner-father. It has struck a balance between the rights of both parties and has ensured that the directions align with the overall welfare of the child.”

The petitioner, the child’s father, challenged an interim order from a family court in Bandra, Mumbai, which awarded custody to the mother until the parental divorce proceedings conclude.

The father contended that due to allegations of his wife’s adultery, his daughter’s well-being would be better served in his care. He cited the daughter’s strong attachment to his extended family and claimed that his residence’s proximity to her school and activities were advantageous. Additionally, he argued that the atmosphere at the mother’s home was unsuitable for the child’s welfare. He also referred to letters from his daughter expressing her desire to live with him.

However, the Court determined that the family court had effectively balanced the rights of both parties while considering the child’s overall well-being. After engaging with the child privately, Justice Deshmukh noted that, at 8 years old, the child lacked the maturity to fully comprehend her best interests.

The bench also found that the allegations of adultery against the mother were not conclusively proven, and the father failed to establish that living with the mother would be detrimental to the child’s moral and ethical development.

“The child’s relocation from her father’s residence, where she had lived since birth, to her mother’s home requires an adjustment period. It is normal for children to express grievances about one parent to the other, but such expressions cannot be escalated to the point of reversing the established situation,” the judge remarked.

Furthermore, Justice Deshmukh highlighted that the 8-year-old girl was undergoing hormonal and physical changes, and the mother, who is a qualified doctor, is better suited to provide the necessary care and understanding during this transformative phase.

“In this stage of the child’s life, she necessitates the care and guidance of a woman who can better empathize with the developmental changes she is undergoing. Therefore, the mother is favored over the father at this juncture,” the bench noted.