New Delhi: A family court in Pune has granted interim or temporary custody of a 10-year-old boy to his father, saying the future of the child wasn’t safe in the hands of a woman who didn’t fulfil her “pious” duties towards her husband.
In a 29-page order, family court judge Ganesh Ghule said the boy’s mother did not appear to be aware of her duties towards her husband, which included “nurturing the home, maintaining the respect, providing emotional support in traditional and religious perspectives, managing the household diligently”. The judge added that despite this, she expected financial assistance from him.
The ruling is a departure from the common approach adopted by family courts and high courts, where custody of minors below the age of 10-12 is usually awarded to the mother.
This well-settled principle of law aligns with Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which says that the custody of minors below the age of five shall ordinarily lie with the mother.
“The husband, from whom she is expecting huge monetary assistance, but (she) has not exhibited a single word that she is ready to patch up,” the court noted.
“Pious duties of a wife towards her husband, nurturing the home, maintaining the respect, providing emotional support in traditional and religious perspectives, managing the household diligently, communicating with kindness, creating a welcoming environment—these appear to be foreign terms to her,” it added.
The court also emphasised that the future of the child would not be safe with a woman who was treating the child’s father as an “enemy”.
“Keeping the marriage vows, caring for her husband physically and emotionally, praying for him, and seeking his good in all things is an expectation; however, she treated him as if he and his family were her seven-generation enemy, thus, in the company of such a woman, the future of the child is not safe,” the court ruled.
Custody battle
The couple, originally from Pune, got married in 2012, and their son was born four years later. They moved to Singapore in 2022 when the husband got a job at a tech company.
However, when the father was on a work trip in March last year, the mother took the child back to Pune and enrolled him in a school without informing the father.
He then approached a Singapore court, which in July last year granted him final custody of the child. Although the court directed the child’s mother to return him to the father, she did not challenge the orders or even adhere to them.
Subsequently, the father filed a plea before the family court in Pune, which observed that the child had been instigated against the father. Despite this, the family court order remained silent on the key issue of the child’s custody.
The boy’s father then went to the Bombay High Court which, in February this year, set aside the Pune family court’s order and directed it to decide the matter anew, keeping in mind the child’s welfare.
What lawyers said
Senior advocate Geeta Luthra, who specialises in family law, expressed shock at the family court’s order. She told ThePrint that custody cannot be taken away from the mother on the grounds of disrespecting the husband alone, and a doting parent cannot be denied a right to their child.
“How can a mother’s character be a ground to deny her custody? Someone may be a good father, yet a poor husband, in the same vein. How do you decry her fitness as a parent?” Luthra said.
“I believe we need to start looking at the fact that there will be fathers playing traditional and non-traditional roles. Similarly, you cannot typecast a woman for not being a sevadhari wife,” she added.
According to Luthra, while the law has started acknowledging non-traditional roles for spouses and courts are not averse to granting custody of minors to the father if the circumstances warrant it, a small child is normally considered best nurtured by a woman.
“I have seen fathers awake the whole night, and mothers who relax. But typically, when the child is four or five, you are thinking of nurturing substantially by the mother. A small child is normally considered better nurtured by the woman, akin to an infant,” she said.
Saying that everybody should have mutual respect, dignity, and regard for each other, whether husband or wife, Luthra added that perhaps the language used by the judge was problematic.
“Maybe the judge intended to say that spouses should have respect or regard for each other, but there was a paucity in the quality or the wording of the expression,” she said.
Family and divorce lawyers told ThePrint they had seen cases where custody was granted to a child’s father for a host of reasons, such as the mother’s mental or physical unfitness, inadequate financial resources, and the overall well-being of the child.
“Although, in my experience, the custody of a child, at least till the age of 10-12 years, is given to the mother, more so in cases where the child has been with the mother since birth,” said advocate Manish Tiwari, who specialises in family and divorce law.
Underlining that the law was that the welfare of the child is paramount, and cannot be decided by “morality”, Tiwari said: “This order appears to be more of a kind where a judge has, rather than looking for precedents, adjudicated a matter from his personal opinion.”
Delhi High Court Bar Association Member Executive Shrey Sharawat also told ThePrint that the welfare of the child was paramount in such cases.
“The court’s reasoning is patriarchal, lopsided, and perverse while attempting to define the pious duties of a wife, whereas the duties of a husband in a matrimonial relationship in the 21st century are often ignored. The nature of the relationship between a husband and wife cannot be the basis to decide a custody dispute unless it has a direct bearing on the welfare of the child,” he said.
Weighing in on the Pune court’s order, Delhi-based family lawyer Dharmender Arya explained that courts have to look at a host of factors, like the financial and mental stability of both parents, when deciding which parent will ultimately have custody of a child.
“Custody is a tricky task as courts usually look at a host of factors such as which parent can look after the child financially, or which parent can care for the child emotionally, and then aim to balance these concerns,” he said.
In the present case, however, Arya said the child’s welfare was not considered properly, and neither was the child asked what he wanted. “A 10-year-old child is mature enough to give his opinion about which parent he wants to be with.”
This is not the first time a court has granted a child’s custody to the father.
In October last year, a two-judge Delhi High Court bench upheld a family court order granting custody of a child to the father, ruling that allegations of adultery against the wife were coupled with “deliberate neglect” and “conscious abdication of maternal obligations”.