Mitali Palnitkar
Published on: March 16, 2022 at 20:04 IST
The Chhattisgarh High Court held that if there is a Conflict between Personal Law to which a Minor is subject, and the Welfare of the Minor; the latter must Prevail.
The Division Bench comprised Justices Goutam Bhaduri and Rajani Dubey. It considered the choice of a child in a Custody dispute, while emphasizing that a child cannot be treated as a Commodity in the Dispute between the parents.
It was examining an Appeal against a Family Court Order, which Granted the Custody of the children of the parties to the Respondent-Mother.
The Appellant-Father relied on the Settlement Deed between the parties through which the Custody of Children was given to him. However, the Respondent Alleged that the Appellant committed Fraud for executing the Settlement.
The Court observed that the Oral Evidences could not be excluded even though there was a Contract between the parties. Thus, the Statements of both the children were taken into account.
The Court stated, “Reading of their Statements would show that both have expressed that they love mother and wanted to stay with her.”
It added that it could not ignore the Welfare of the children by accepting the Appellant’s Submission that the Oral Evidence should be excluded.
The Court examined the Tenets governing Guardianship under Mohammedan Law. It noted that the mother is Entitled to the Custody of the Male Child until he attains 7 years of Age and Female Child until she attains 14 years of Age (Age of Puberty).
It relied on the Supreme Court Judgment in Mousami Moitra Ganguli Vs. Jayanti Ganguli, wherein the Court expressed that the Welfare and Interest of the Child shall be taken into consideration and not the Rights of Parents under a Statute while deciding an issue as to which Parent should be the Guardian of the child.
The Judgment stated, “The Custody Battle of children requires a human touch apart from the Statutory Obligation.”
Therefore, the Custody of the children shall remain with the mother as their wish and will Prevail. However, the Interests of the Father were protected by laying down Detailed Guidelines for Visitation Rights while emphasizing on the Bond between father and the children.
Also Read: Adoption and Rights of Adopting Parents under different Personal Laws
