Desires of children important but not decisive in custody matters: HC

The Bombay High Court ruled that while children's comfort is important in custody cases, their wishes alone can't dictate access decisions.

MUMBAI: The desire and comfort of children are required to be taken into consideration while deciding access and custody matters, but their wishes cannot be decisive, the Bombay high court has said while rejecting a petition filed by a city resident, challenging family court order granting her estranged husband overnight access to their children. The woman had contended that the children did not want to meet their father, and the court rejected the argument saying, “It wasn’t a decisive factor”.

Desires of children important but not decisive in custody matters: HC

A single judge bench of justice Gauri Godse said it is true that “desire and comfort of the children is required to be taken into consideration while granting access” but “only the wishes expressed by children cannot be accepted...completely ignoring the other factors”.

The Goregaon resident had approached the high court, challenging orders passed by the Family Court in June and July 2019, granting her estranged husband overnight access to their son and daughter on weekends and half of their school vacations.

It is well established that the interest and welfare of minor children are always of paramount importance, said the Judge. “However, the willingness of minor children expressed through their mother cannot be the only consideration in deciding the interest and welfare of the minor children,” the bench added while rejecting the petition.

It was argued on behalf of the woman that the lower court failed to take into consideration that both her children were not willing to meet their father because of his anger issues and it was incorrect on the part of the lower court to pass the order without understanding the mindset of the children. Her counsel added that the lower court should have interviewed the children and passed orders only after considering their wishes.

However, her husband pointed out that when he was in the US, his daughter was regularly communicating with him through e-mails, informing him about her school activities and educational requirements, indicating that they were on good terms. He added that even after his wife and children came to India, they shared a cordial relationship, but his wife’s attitude changed because of the influence of her parents after she returned to India.

The high court accepted the argument advanced on behalf of the father and held that access and custody matters cannot be decided solely based on the wishes of the children, especially when they reside with one parent for a prolonged period and remain alienated from the other.

Noticing that the daughter had attained majority without enjoying the father’s company, but the son was 14 years old, the court said both parties needed to make genuine efforts to enable the minor son to spend time with the father. If the son is still unwilling to meet his father, the parties must attend counselling sessions, as suggested by the KEM Hospital.