- In Nimish s. Aggarwal vs Smt. Ruhi Aggarwal the Hon’ble Chhattisgarh HC has held that cases of children’s custody cannot solely be decided by interpreting legal provisions, but have to be solved with a human touch. The Court thus, granted the custody of the child to her mother.
- The instant appeal was filed by the father/husband against the order of the Family Court where the father was only granted visitation rights, and the custody was denied.
- The parties got married in 2007, and a girl child was born out of wedlock. Subsequently the relations between the two parties went sour, a series of allegations and FIRs were lodged. Since the child was in the custody of the mother, an application under section 25 of the Guardians and Wards Act, 1890 was filed.
- Aggrieved by the order of the Family Court, the instant appeal was filed by the father.
- The Counsels for the appellants argued that the welfare of the minor is of paramount consideration in such cases, and the financial status of the father, which has been proved by evidence, would show that the child would be educated in the best School of India, and best education can be given to her. They further submitted that the school that the child was being educated in was not recognised, and was being run by the mother. These factors were ignored by the Family Court.
- The Counsels also referred to section 6 of the Hindu Minority and Guardianship Act and argued that the custody of the child above 5 years of age should ordinarily be with the father, and the lower Court had failed to appreciate the same.
- The Court referred to the decision of the Apex Court in Nil Ratan Kundu and anr vs Abhijeet Kundu (2008)SCC wherein it was held that in cases of child custody, the welfare of the child should be of paramount consideration, and the same should be decided on the basis of relevant statutes. But, the same cannot solely be decided on the basis of legal provisions, it is a human problem and should be solved with a human touch.
- Reference was also made to the decision of the Apex Court in Githa Hariharan vs Reserve Bank of India and anr. (1999) wherein it was held that the the words ‘after him, the mother’ used in section 6 of the Hindu Minority and Guardianship Act need not necessarily mean, after the lifetime of the father. The welfare of the minor would be of paramount consideration.
- The Court also observed that the placement of the child in the best boarding school cannot be a benchmark for the happiness of the child. The Court thus, disagreed with the proposition that a child would get better development if she is placed in the best boarding school in India. It was observed that education and upbringing are two different things and cannot be equated with literacy.
- Thus, the Court granted the custody of the child to the mother but the father was granted visitation rights.
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