Updated: March 5, 2021 1:04:59 am
Resolving a family conflict, the Bombay High Court hailed the parents of a 12-year-old boy as his natural guardians with highest rights to have his custody and directed his grandmother to immediately hand over the boy’s safekeeping to his parents.
A division bench of Justice S S Shinde and Justice Manish Pitale on March 3 passed the judgment on a habeas corpus petition filed by the boy’s parents, seeking to direct his maternal grandmother to produce him and hand over his custody to them.
Advocate Rajesh More for the parents said the petition was filed as the grandmother was refusing to part with the couple’s only son who had been living with her since August 2019. The counsel submitted that the couple lived in Pune and the husband was working in a multinational company. The duo was married in 2008 and thereafter, the boy was born.
In 2019, the boy’s mother suffered from a gynaecological ailment for which she was advised to undergo a surgery and take rest. She moved to Nashik for treatment as her mother (respondent grandmother of the boy) and her family were living in the same city.
As travelling restrictions during Covid-19 lockdown were gradually relaxed in May 2020, the couple decided to return to Pune and enrol their son in a school for next academic year. “When the grandmother became aware of it, she picked up a quarrel with the petitioners and said she would not allow the boy to be taken back to Pune,” the plea said.
The parents also filed a police complaint and approached the Child Welfare Committee (CWC) that ordered the boy’s custody to be handed over to his parents. The order was however, set aside by the district magistrate on a plea made by the grandmother. Therefore, the couple moved the high court after the grandmother also lodged a police complaint against them.
A single-judge bench of the high court in December 2020 observed that the child was “prima facie tutored” to say that he wanted to stay with his grandmother and also set aside the CWC and magistrate orders.
Justice Pitale for the bench observed, “With reference to the factors that go into determining the welfare of the child, which is the paramount consideration in such cases, the ordinary comfort of the child in the present case, his contentment, health, education, physical moral and intellectual development, ethical upbringing and economic well-being, as also his future certainly lies with his parents i.e. the petitioners.”
It added, “Thus, even if the child is about 12 years old and it may be said that he is old enough to form an opinion or preference, we feel that he appears to have been tutored to make statements before the court in favour of respondent grandmother.”
The court directed the grandmother to give immediate custody of the boy to his parents and allowed her visitation rights, in view of “human touch and sensitivity towards feelings of the child”, on every weekend for three months between 10 am and 5 pm.
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