Amidst a bitter child custody case, the Calcutta High Court in its order dated February 28, 2023 has permitted a 13-year-old boy to decide the choice of parent he would like to stay with.
The high court said that the young boy was “intelligent and matured enough” to decide the matter on his own. The son chose to go with his father.
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The couple got married in 2008, and a son was born to them in 2010.
The marriage went kaput in the year 2017, after which the wife left her in-laws’ home with the child and lodged a criminal case against her husband. In the interim, the couple also got embroiled in a bitter child custody battle, which has been on for the past six-years.
The father is a school teacher based in Balurghat, while the mother is a Malda-based academic. The husband, his parents and brother are out on bail but facing criminal charges filed by the wife for physically and mentally torturing her. The couple are also locked in divorce proceedings.
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Allegations by Father
The estranged husband informed the High Court that his wife had not permitted him to meet with his son in the last six years.
Arguments by Mother
The wife on the other hand argued that the child’s paternal grandfather (daada) was a retired school clerk, while his paternal grandmother (daadi) was an Anganwadi worker, thus they could not bring up a child better than his maternal grandparents (naana-naani), who were school principals.
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Calcutta High Court
After hearing arguments from both sides, the division bench of Justices Soumen Sen and Uday Kumar of the Calcutta High Court at first tried to save the marriage, but was not successful. The court even proposed joint parenting, which also failed.
The court then turned to the young boy and asked him what he wanted. To which, the child said that ideally, he wanted to stay at his father’s place with both parents.
Observing that the child was intelligent and matured, the High Court said,
The child is intelligent and matured enough to decide his custody. He is capable of forming an intelligent preference regarding his custody.
The child had told us that he was very happy at his father’s place, in the joint family of grandparents and uncles. At his mother’s in Malda, he felt lonely after coming home from school.
The Bench added,
The court should not allow such bitterness between parents to affect the child. It referred to a Supreme Court order that said that the welfare of a minor child would prevail over the legal rights of the parties in a custody battle.
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Remarking further on the mater, the High Court said,
The court is not bound either by statutes nor by strict rules of evidence nor procedure or precedent. In deciding the issue of custody, the paramount consideration should be the welfare and wellbeing of the child.
On accusations by father of #ParentalAlienation, the HC said,
The creation of any unwanted situations in order to separate the child from the father should not be condoned or encouraged just because the applicant is the mother of the child.
The HC did not approve the manner in which the child was taken away by the mother from the Balurghat private school where he studied, saying frequent change of places and schools would affect a child “adversely”. It said,
There are numerous instances where the father was able to fill up the void created by the absence of the mother.
Addressing mother’s argument on paternal grandparents’ and their status, the HC refused to buy this argument. The court even asked the principal of the private school where the child studied from KG, before his parents separated, to readmit the child.
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Custody To Father, Mother Gets Visitation
The son of the parties was allowed to return to his father. The mother was given twice-a-month visitation rights and permission to interact with the child on phone or video calls over the weekend and a month’s custody per year.
Voice For Men India has always been in favour of the best interest of the child, and we strongly propose that India soon adopts a Shared Parenting concept (law), where both parents can co-partner to raise the child. Alienating either father or mother from their own children is one of the most inhuman acts which should be strictly discouraged.
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Minor Son Returns To Father After Calcutta HC Asks Him To Choose Parent In Custody Battle— Voice For Men India (@voiceformenind) March 8, 2023
▪️HC: "Child said he was very happy at father's place, in joint family of grandparents & uncles. He felt lonely after coming home from school at his mother's place"https://t.co/s2JN7wAfVb
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