Custody decisions are not rigid and final and are subject to change taking into account the needs of the child: Patna Supreme Court

The Patna High Court has stated that the orders made in custody cases cannot be rigid and final and can be modified to take into account the needs of the child. The court explained that custody orders are always considered restraining orders.

“Under Section 26 of the Hindu Marriage Act, 1956, the court has power to make orders or make arrangements in respect of the custody, maintenance and education of children pending the proceedings or after making an order under the Act.” . Orders placed in this section may be modified, suspended or revoked from time to time. The purpose of this section is to provide just and reasonable accommodation for the welfare of minor children,” it said.

The verdict set aside an order of the Chief Judge of the Patna Family Court in a marital dispute. The court had ordered the plaintiff husband to transfer custody of their minor child to the defendant wife.

The husband and wife, who had been married since 2010, amicably filed for divorce in 2015. It was agreed that the husband would pay Rs. 5 lakhs to his wife in compensation and he would be granted custody of their daughter. The husband made the payment in 2016 and the minor child was placed in his care.

However, later, after the divorce, the wife filed an application with the court to give her custody of their daughter. The husband refused this request and also requested a refund of the money paid, citing alleged harassment by the wife and her family members. In response, the woman expressed her desire to reconcile with her husband, but insisted on receiving custody of their daughter.

The Chief Family Court Judge in the contested decision ordered the wife to return the money to the husband and ordered him to give custody of the child to the mother.

Attorney Niraj Kumar, representing the plaintiff, argued that the lower court failed to consider the best interests of the child and the father’s role as natural guardian. Stressing the “strong bond and affection” between the plaintiff and the child, he stated that granting custody to the woman, who has had a history of changing her mind, was not in the child’s best interests.

Attorney Binod Kumar, counsel for the defendants, argued that given the changed circumstances, it was in the child’s best interests to live with his mother. He argued that the petitioner and his family had neglected their responsibilities towards the child.

Judge Sunil Dutta Misra stated that in custody disputes between parents, their children are the main victims.

“While parents file for divorce by mutual consent, they can decide on the issue of custody of the child. However, if this is not decided by consensus, the court will decide taking into account the best interests of the child,” the court said

The court found that the minor child is currently around 11 years old and that the contested order was issued more than 6 years ago, on January 31, 2017. Noting that circumstances have changed significantly since then, the court said it would be better to get in touch with the child and determine their preference for the parent they wish to stay with.

Judge Misra emphasized that a child is not an estate or personal property that can be divided between parents.

“The court has a duty to exercise jurisdiction as parens patriae (guardian of the child) and compel the parties to do something that is in the best interests of the child,” the court said, adding that there had previously been an agreement between the parties Parties have given respect to permanent alimony and custody of a minor child, but now the parties disagree on those terms.

In the changed circumstances, the trial court is required to consider all aspects of the case and when deciding custody of a minor child, the child’s best interests are the paramount priority, the court said.

The court ordered the trial court to issue a new order on the motions filed by both parties, including the issue of provisional custody of the child, consistent with law.

“The court below having jurisdiction is also directed to resolve the marriage case expeditiously and both parties are also directed to cooperate in the early settlement of said marriage case,” it said.

Case Title: Ranjan Kumar Gupta vs. Puja Devi CIVIL DIFFERENT JURISDICTION No. 330 of 2018

For the Applicant(s): Mr. Niraj Kumar, Attorney; For the defendant: Mr. Binod Kumar, Attorney