Comfort of child should be taken into account while deciding custody matters involving children: HC

The Bombay High Court. File
| Photo Credit: Paul Noronha

Welfare of a child includes both physical and mental well-being, health, comfort and overall social and moral development, the Bombay High Court has said while upholding a family court’s order handing over the interim custody of a girl to her mother.

Welfare of a child is of paramount consideration in deciding the custody matters and child’s comfort is one of the factors that is to be taken into account, it said.

A single bench of Justice Sharmila Deshumkh in the order of July 21 dismissed a petition filed by the woman’s husband challenging a February 2023 order passed by the Bandra family court directing him to hand over the custody of the eight-year-old daughter to the estranged wife.

“The word ‘welfare’ is to be understood in the widest sense taking within its fold the physical and mental well-being, health, comfort and overall social and moral development of the child. All that is essential for a well-balanced upbringing of the child amounts to welfare of the child,” the order said.

Justice Deshmukh noted in the order that while deciding the custody matters, the paramount consideration is the welfare of the child.

While refusing to quash the family court order, the court noted that the comfort of the child is one of the factors to be taken into consideration while considering the welfare of the child.

The bench added that the girl was eight years old and would be undergoing hormonal changes and also physical changes.

“Much care has to be taken during this phase of growth of the girl child and the paternal grandmother or the paternal aunt cannot be a substitute to the mother who is also a qualified doctor,” it said.

“During this phase of life, the girl child requires care and attention of a woman who would be better equipped to understand the process of transformation which the girl child will undergo and as such, the mother at this stage is preferred against the father,” the high court said.

As per the plea, the couple got married in 2010 and their daughter was born in 2015.

The couple separated in 2020 following allegations by the man that the woman had indulged in extra marital affairs. The daughter was staying with her father.

The husband then filed a divorce plea in the family court and also sought permanent custody of the girl.

In February 2023, the family court granted interim custody of the minor girl to the mother and granted visitation rights to the father.

The man in his plea in the HC said his daughter was attached to his family and that her comfort, safety and convenience needs to be considered.

The man further alleged that his estranged wife had indulged in extra-marital affairs and hence would have little regard for the welfare and upbringing of the minor child.

The woman opposed the plea and said the girl was with her during the weekdays and with her father during the weekends.