In a recent decision, the Punjab and Haryana High Court denied a mother's request for interim custody of her 3-and-a-half-year-old son, stating that the child is presently comfortable and well-settled with his father. The Court ruled that removing the child from his current environment may not be in his best interest.
The matter was heard by Justice Vikram Aggarwal, who emphasized that allegations of extramarital affairs are common in matrimonial disputes and should be weighed carefully.
Read also: P&H High Court Slams State for Breach of Contract, Cites Rule of Law
“Though, such allegations are common in matrimonial disputes and parties often level allegations and counter allegations, upon interaction with the respondent, it was found to be his concern about the said alleged relationship. Under such circumstances, in the considered opinion of this Court, for the present, the welfare of the child would be to remain with the respondent,” said Justice Aggarwal.
Background of the Case
The couple got married in 2019. However, due to marital discord, both parties filed for divorce by mutual consent. In 2021, they submitted a joint statement stating that all issues had been settled amicably. The custody of their minor son was handed over to the husband, and the wife had agreed not to claim custody or even visitation rights in the future.
However, in 2024, the mother approached the Family Court, expressing her desire not to proceed with the divorce and seeking custody of the child.
She filed a petition under Section 7 read with Section 25 of the Guardians and Wards Act, seeking custody. The Family Court dismissed the application, prompting her to file a revision petition before the High Court.
The High Court referred to Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which states that the custody of a minor under five years should ordinarily remain with the mother. But the Court also clarified that this rule is not absolute and must be examined in the context of each case.
Read also: Delhi High Court Puts Hold on BCI’s Ban Against Punjab Lawyer Lokinder Singh Phaugat
“The petition filed under Section 13-B of the HMA, 1955 contained a specific recital that parties had agreed that the custody of the minor son Aadhish would remain with the respondent-husband and that the petitioner-wife would not claim custody or meeting rights even in future,” observed the Court.
The Court found that the agreement between the parties in 2021 was clear and specific. The wife’s recent claim that she was unaware of the custody arrangement was also rejected.
“The stand taken by the wife that the custody of the minor child was handed over to the respondent by keeping her in the dark is unacceptable,” said the Court.
During the proceedings, the Court took into account the financial and emotional well-being of the child. The mother reportedly earns around Rs. 10,000 per month from giving tuition, while the father is into digital marketing and works from home, enabling him to provide constant care to the child.
The judge personally interacted with the child, which revealed the child’s strong emotional attachment to his father.
“When the mother was not in the chamber for the personal interaction session and only the child was there with the father, the father was asked to leave the chamber. The moment the father got up, the child started crying inconsolably stating that he would not leave his father,” noted the Court.
The judge emphasized that young children often get attached to the parent they spend the most time with and switching custody may disturb their emotional balance.
“It cannot be denied that being of a very tender age, the child would cling to the parent with whom he has been living for a while. If the custody is given to the mother, the child may behave in the same manner if the custody is again attempted to be given to the father,” remarked Justice Aggarwal.
Considering all the factors – the child’s current comfort, prior mutual consent, and the emotional and financial capability of the father – the High Court concluded that the situation is not a normal one, and forcibly transferring custody at this stage may adversely affect the child’s mental health.
“The situation in hand is not an ordinary situation,” stated the Court, adding that the child had been living with the father for over a year and appeared settled.
As a result, the Court refused to grant interim custody to the mother, leaving the final decision on full custody to be decided by the Family Court where the petition is still pending.
Consequently, the plea was dismissed.
Mr. Sanjiv Kumar Aggarwal, Advocate and Mr. Tejas Bansal, Advocate for the petitioner alongwith petitioner and minor child.
Mr. Ankit Chahal, Advocate for the respondent alongwith respondent.
Title: XXX v. XXX
