Plea of Character of a Parent and the Issue of custody of the child: Decision by Chhattisgarh High Court

Child custody decisions are not just a legal pronouncement, but a decision who’s long lasting impact is on the entire life of a child. It is difficult to weigh on scales as to which parent should be given custody as the child needs complete parental care, irrespective of their personal disputes. The court has been empowered by the law to restore lawful custody after due considering of the welfare of the child under section 25 of the Guardianship and Wards Act. The focus of welfare of child is being looked by court in such cases for the parents at dispute while deciding custody. In Deepa Nayak v. Pitamber Nai  [FAM No. 35 of 2016], the Chhattisgarh High Court observed that if the wife does not squeeze into the mold as per the desires of her husband, it would not lead to her losing the custody of the child.  The parents in the aforesaid case even though had obtained divorced by mutual consent, wherein it was decided that the mother will have the custody of the child. But as soon as the child attained 5 years of age, the father sought custody of the child on the ground that the character of the mother is not good and therefore, will have an ill effect on the upbringing of the child. To seize the custody often disputes take the color of character assassination. How this issue was resolved and evaluated by the Hon’ble court has been discussed in the article.

Character of the parent

The case is important from perspective that the court has taken cognizance for due cause of interference in the matter as bald statements and statements of third person could not be decisive factor to deprive lawful custody. The performance of school can well mirror how well the legal guardian is taking care of the child. The character of the parent, plea of illicit relationship or declaring a parent is under effect of alcoholic consumption is enough to make the child like a football in legal arguments. The law however has made important consideration of welfare of the child as the central factor to decide. The court regarding the issue of the character of women made an interesting observation-

“The statement of witnesses of plaintiff would show that they are largely influenced by attire of women as she wears jeans and T-shirt along with the fact that she is marching along with male members of society. We are afraid that if such ill-conceived exercise is given a spotlight, then to protect the right & freedom of women would be a long arduous battle. If the wife do not squeeze into the mold as per desire of husband, it would not be a decisive factor to lose the custody of the child by her”

Welfare of the child

The Supreme Court in various pronouncements have made it clear that welfare of the child should be the first and paramount consideration supersedes even the rights of the parents like Mousami Moitra Ganguli v. Jayanti Ganguli AIR 2008 (7) SCC 673 and Tejaswini Gaud & Ors. v. Jagdish Prasad Tewari (2019) 7 SCC 42. The Chhattisgarh Court made important reference to Nil Ratan Kundu v. Abhijit Kundu [(2008) 9 SCC 413] wherein it was held that and emphasized that paramount consideration should be the welfare of the child and due weight should be given to the child’s ordinary comfort, contentment, health, education, intellectual development, and favorable surroundings.

Human Touch

Child custody matters are not mechanical decision and Chhattisgarh Court was right in observing the Supreme Court judgment in M.K. Hari Govindan Vs. A.R. Rajaram reported in 36 2003 OnLine Mad 48: AIR 2003 Mad 315,  which held that the custody cases of child cannot be decided on documents, oral evidence, or precedents without reference to “human touch”. “It held that human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience.”

Visitation right and contact right

The child custody matters often end up making child as shuttle cock, where theory of deprivation of the other party to child is important and decisive for consequences on multiple matters that parties have dragged themselves into. The Chhattisgarh court shared important spotlight on the issue of visitation right remain unattended in the custody matters. The Apex Court in Yashita Sahu Vs. State of Rajasthan (2020) 3 SCC 67 held that even after the custody was given to one parent, the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical, and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. The Supreme Court in Yashita Sahu (Supra) further observed that the concept of “visitation rights” is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. It held that the child has a human right to have the love and affection of both the parents and Courts must pass orders ensuring that the children are not totally deprived of the love, affection, and company of one of their parents.

In addition to “visitation rights” the court observed that the “contact rights” is also important for the development of the child specially in cases were both the parents live in different places the concept of contact rights in the modern age would be contact by telephone, e-mail or in fact we feel the best system of contact, if available, between the parties should be video calling. It observed that with the increasing availability of internet, and the Courts dealing with the issue of custody of child must ensure the parent who is denied the custody of the children should be able to talk to his/her child as often as possible. It held that the communication will help in maintaining and improving the bond between the children and the parent who is denied the custody. If that bond is maintained, the children will have no difficult in moving from one home to another during vacation or holidays. The purpose was held that the court cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each.

In a recent decision rendered in Ritika Sharan Vs. Sujoy Ghosh, (2020 SCC OnLine SC 878) the Supreme Court held that a balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security. The interests of the child are best served by ensuring that both the parents have a presence in his/her upbringing.

International Case Study : US

The law in the United States regarding custody of children is governed by the states. Thus, each of the 50 states has its own law including DC. The laws of states are similar in most respects and the court having jurisdiction for the divorce proceedings determines child custody cases. Under the common statutory provision, if the spouses have children together while married, the parents have joint guardianship over the child(ren) and the parental rights are equal. Each parent has an equal right to the custody of the child when they separate. There is a concept of exclusive custody, supervised custody, and visitation rights.

Child custody is a complicated issue however character of parent being dodged to secure custody of child after he turns 5 years by the other parent is not uncommon and an old formula in disconnected marriage. The mother in a divorce is generally given the right to care and control of the young children in most cases because the perception is that mothers typically are the main caregiver from the time of the children are born. However, if there is no compelling evidence to show like history of abusing, neglecting, or mistreating her custody in such cases should not be disturbed on blanket allegations or opinion of third party, which can be variable depending upon the environment of such people. A Family Court-appointed counsellor, private friendly conversations with the child, behavioral study, school performance, medical health etc parameters can play an important role of giving evaluation report to convince the Court that the parent is unsuitable to be given Care and Control. Study have shown children exposed to marital conflict or abusive parent often show significant behavioral concerns. These studies should be also given due evaluation for assessing the welfare of the child in each custody. Secondly, co-parenting is important unless impossible. When marriage is under dispute co-parenting cannot be expected without court order. The formula of shared care also should not be drawn to drag every upbringing issue to the court making child a bone of revenge to win arguments through court. There is a need to expand the legal study in this matter with behavioral and psychological inputs to decide such cases beyond the created cases of allegations and counter allegations.