The Bombay High Court recently held that a female child of tender age ordinarily would be comfortable with her mother and would need her care and protection. The HC accordingly handed over custody of a minor girl to her mother.
A bench of Justice Vinay Joshi noted that the father of the girl was working in Thane and would leave for work, leaving the girl alone at home and thus, her engineer mother would look after the child more.
The judge was hearing a plea filed by a woman challenging two orders of a Family Court denying her the custody of her five-year-old girl.
The woman claimed that her husband had gone to his brother's house at Akola district last year during the lockdown and had been working from home. She claimed that her husband would leave for a job leaving the minor daughter at the mercy of his old mother and his brother.
The husband, however, relied upon the Hindu Minority and Guardianship Act, which allows custody of a child above five years to be with his or her father.
"The act states that in the case of a boy or an unmarried girl, the father, and after him, the mother would be the natural guardian with a rider that the custody of the minor, who has not completed the age of five years, shall ordinarily be with the mother. True,
the father as a natural guardian is primarily entitled to the custody of a child, who has completed five years of age," the judge noted.
"However, in the case of a child below five years of age, the position is reversed. In view of the proviso, the onus lies on the father to rebut the legal preposition as to why the custody of such child of tender age shall not be with mother," the judge said, adding, "Merely because the child has just crossed few months above five years, the statutory provision regarding ordinary custody of mother cannot be overlooked."
The bench noted that the husband didn't make any submissions against the wife's financial potentials to cater for the need of the child.
"Pertinent to note that it is a female child, who has just crossed five years of age. Naturally, the child’s ordinary comfort would be with her mother for which there could be no two opinions," the judge said, adding, "Especially, she is a female child requires mother’s protection and care in her developing age. In the situation, I do not doubt in my mind in giving preference to the mother in absence of special circumstances."
The judge accordingly granted custody of the child to the mother.
