ROXANN SHARMA V/S ARUN SHARMA
CIVIL APPEAL No. 1966 OF 2015
In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.
The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.
The apex court quashed the order of Bombay high court which granted custody of a two-year-old child to father on the ground that the Mother had not established her suitability to be granted interim custody of the Infant.
The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardized if the custody is retained by the mother. Section 6(a) of the Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. The court said that the Act placed the onus on father to prove that it was not in the welfare of the infant child to be placed in the custody of mother and HC order virtually nullifies the spirit of the enactment. The Act immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The use of the word 'ordinarily' cannot be over-emphasized. It ordains a presumption, albeit a rebuttable one, in favour of the mother.
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