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Treat Child as Human Being and Not Like a Toy: Bombay High Court in Custody Case

The most important aspect is the best interest of the child, says the judge

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Staff Writer, TLR

Published on June 20, 2024, 09:18:32

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A child involved in a custody battle must not be treated like a toy by their parents but should be regarded as a human being, with their interests given paramount importance, the Goa bench of the Bombay High Court recently observed in a child custody case.

Single-judge Justice Bharat Deshpande made this observation while granting equal custody time to both the mother and the father during the child's summer holiday.

"It is necessary to note here that a child cannot be considered as a toy for the purpose of compensating parents for their lost visitation rights. A child has to be treated as a human being, and the most important aspect is the best interest of the child, which has to be of paramount importance," Justice Deshpande stated in the order dated June 14.

The order came in response to a plea filed by the mother seeking to quash the family court's May 8 order, which had granted seven weeks of custody to the father and five weeks to the mother.

The parties were US citizens, and their marriage took place in California. The child was born in February 2019 in Paris. However, relations between the two soon soured, and the father brought the child to Goa after a court in California granted him custody in an ex-parte order.

Subsequently, the mother also came to India, and the estranged couple initiated custody proceedings before the family court in Mapusa.

The High Court noted in its order that it had modified a family court's June 2023 order in October 2023, granting visitation rights to the father while upholding the child's custody with the mother.

However, the father could not exercise his visitation rights due to the child's ill health. Therefore, the father filed another application before the family court in Mapusa, seeking custody of the child during the school holiday.

The family court, in an order dated May 8 this year, acknowledged that the father could not utilise his visitation rights due to the child's ill health.

Consequently, it granted him seven weeks of custody during the summer break while granting only five weeks to the mother. The mother then appealed to the High Court against this decision.

The High Court refused to accept the father's argument that lost visitation rights could be compensated and that the family court had rightly granted him more time.

The judge stated that the family court's decision to grant the father seven weeks of custody was against the best interest of the five-year-old child.

"For a child of such tender age, the presence of the mother is of utmost importance. However, it cannot be ignored that the father also needs to be considered for the purpose of custody and visitation rights," the Court said.

The paramount interest of the child needs to be considered along with the fact that they are entitled to spend time with both parents during the holiday period, the single-judge opined.

Hence, it would be appropriate to equally divide the holiday period between the parents, the Court ruled.

"Parents as well as the child are entitled to utilise such a holiday for the purpose of spending quality time with both the father and the mother and their respective relatives, in order to maintain and keep the bond within the family. The child needs an opportunity to become acquainted with the family members of both parents," the order stated.

Therefore, the Court ruled that the holiday period of eleven weeks should be divided equally between the mother and the father.
It granted five weeks of custody to each parent accordingly.

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