Keeping child in mother's custody natural, conducive to its welfare: Bombay HC

Keeping a child in the custody of the mother appears more natural and conducive to his welfare and development, the Bombay High Court said on Thursday, while refusing to direct a television actor to hand over the custody of her five-year-old son to her estranged husband.

A division bench of Justices S S Shinde and N J Jamadar was hearing a habeas corpus (produce the person) petition filed by the husband seeking a direction to the actor to hand over the custody of their son to him.

The court, while refusing to hand over the custody of the child, said there was no material, which prima facie indicates that the custody of the child with the mother was detrimental to his welfare and development.

At such a tender age, a child needs the company of the mother, and hence, keeping him in her custody appears “more natural and conducive for the development of the child”, the court noted.

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“Ordinarily, the amount of love, affection, care and protection, which a mother can provide to a child of such tender age, cannot be expected to be provided by the father or any other person. This does not necessarily reflect upon the unsuitability of the father and other relations,” the court said.

The bench, however, noted that the child needs the love and affection of both parents, and hence, access should be given to the father. The court also directed the actor to allow daily access to the father, through video-conference for half an hour and physical access twice a week.

“We hope and trust that the petitioner (father) and respondent No 2 (the actor), who claim to be adept at playing characters, in reel life, act in the best interest of the child, in real life,” the court said in its order.

The actor's husband in his plea had claimed that she had illegally kept his son away from him. The petitioner’s advocate Swapana Kode sought custody of the child to be handed over to the father claiming that he had quit acting to take care of the boy and that his estranged wife was unable to pay attention to the child's needs and well-being, as she was constantly busy with her professional commitments.

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The actor's advocate Hrishikesh Mundargi opposed the plea and argued that the child was happy with his mother and that it would be detrimental to his growth and well-being if his custody was handed over to the petitioner.

The bench, in its order, noted that due to marital discord, the couple had developed a strong animosity towards each other and in such cases, where the parents are at loggerheads, the parameters for determination of proper custody of a child is well recognised.

The bench refused to accept the petitioner's argument that his wife, being an extremely busy actor, was not in a position to devote time and effort towards the upbringing of their son. “In our view, the issue of welfare of the minor cannot be determined on the sole parameter of the work commitment of one parent and the availability of ample time with another. The fact that respondent No 2 is a busy actor, cannot be construed to unfavourably judge her suitability to have the custody of the child,” the court said.

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