The Gujarat High Court has denied custody of child to a mother holding that her work-schedule won't permit her to take care of the child properly.
The single-judge bench of Justice Umesh Trivedi was of the view that comparitively to her, the father of the child was in a better position and could be 'available at any moment, in case of need.'
The Court was adjudicating upon an appeal filed under Section 47 of the Guardian and Wards Act, 1890 against the Family Court order whereby, the application preferred by the wife for custody of minor son’ Dhrij’ wrongly stated as ‘Dwij’ in the impugned judgment and order as submitted by learned advocate for the appellant, who was then 2 years, came to be refused.
Making a case for her, the learned advocate for the appellant-mother submitted that considering the age of the child at the time of filing an application being 2 years in view of Section 6 of the Hindu Marriage Act, 1956 ordinarily custody of the child should be handed over to the wife as per the mandate of the statute.
He further submitted that despite her efforts to get the custody or visit the child, she has been deprived and no custody was handed over to her. He has further submitted that the petitioner is also working woman and she can take good care of child as she is staying with her parents as also brothers and sisters.
Assailing the impugned judgment and order, it was submitted that now she has settled at Viramgam where she is serving as a Teacher. Therefore, along with the service, she can take good care of her child and therefore, custody is to be handed over to the petitioner-mother of a child.
It was also submission from her side in examination in-chief on oath filed that no one attempted from the side of the respondent-husband to pursue her to join matrimonial home. It was further asserted that despite ill health of her father neither husband nor his family member have visited him. It was further submitted that she was also looking after her son very well though, at present he is suffering from which ailment, she does not know as the custody is not with her. Therefore, he submitted that in view of the statutory provisions, the custody of the child ‘Dhrij’ be handed over to her by allowing this appeal filed by the appellant.
The Counsel for respondent-husband alleged that she deserted not only the husband but the child aged 2 years then, has been brought up by the respondent-husband with the help help of his family members.
It was further being submitted that despite so many efforts along with the family members and other relatives to pursue her to join matrimonial home, she refused to do the same and on the contrary, she picked up quarrel and filed the complaint against not only the husband but other family members including relatives, in all 5, in number under Sections 498A, 323 and 114 IPC as also under Sections 3 and 7 of the Dowry Prohibition Act. The Court was informed that except husband, all have been honorably acquitted and against the conviction of the husband under Section 498A IPC, appeal is already preferred, which is pending before the Court.
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It was averred that since she deserted the child when he was at the age of 2 years, she cannot pray for custody of the same without any valid reasons as leaving the custody was the voluntary act by her.
The Counsel raised concern regarding her work-schedule which will be a hindernace in properly taking care of the child in comparison to her husband who is raising him with the support of the whole family.
The Court agreed with Family Court's view of work-schedule being a constrain in taking care of the child. It also affirmed one more reason weighed with the learned Judge that the appellant-wife has a step mother and in all probability, she may not very well take care of the child and therefore, considering the paramount interest of the child, learned Judge has refused the custody to the appellant-mother.
The Court thus found no substantiative arguement in the appeal to take the custody away from the father and accrodingly dismissed the same.
"There is no substance in argument that the custody of the child was snatched away by the respondentfather and on the contrary, as admitted by her in the crossexamination that she left a child at her matrimonial home to visit her ailing father and since then, not returned back. Not only that, while refusing the custody of the child in this case as coming out from the affidavit in-reply filed by the respondent-husband and not disputed by the learned advocate for the appellant that wife has been permitted visitation right to the child."
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(With input from news agency language)
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