HC grants custody of 18-month-old to father for medical emergency

The child is scheduled to undergo an open-heart surgery at a hospital in Aurangabad, where his father lives, in the first week of June

MUMBAI: The Bombay high court on Tuesday expressed displeasure over a lower court’s decision to reject a man’s application for the interim custody of his 18-month-old child due to a medical emergency.

Mumbai, India - Aug. 28, 2015 : Bombay High Court : ( Photo by Bhushan Koyande )

The child is scheduled to undergo an open-heart surgery at a hospital in Aurangabad, where his father lives, in the first week of June. However, the boy’s custody is currently with his mother, who is estranged from her husband and lives in Beed, around 200 km away from Aurangabad, according to the father’s petition.

Considering the seriousness of the case, the high court directed the mother to temporarily hand over the child’s custody to his father so that the surgery could be conducted. “The child will be in custody of the father during the course of hospitalisation, and the mother will get custody of the child subject to further medical advice since the mother stays at Kaij, which is at a distance of 200 km from Aurangabad,” said the single-judge bench of justice Rohit Joshi.

The child’s father had earlier approached a sessions court in Kaij, seeking interim custody. He had attached a medical certificate issued by the MGM Medical Centre and Research Institute in Aurangabad, which stated that the child urgently needed to undergo the surgery, tentatively scheduled for the first week of June. Since the child was with his mother, who lived 200 kilometres away from Aurangabad, he urged the court to consider his application on an urgent basis.

However, the sessions court refused to take up the application for an urgent hearing, stating that there was no urgency to decide the custody application during the summer vacation. The child’s father then approached the high court.

On Tuesday, a single-judge bench of justice Rohit Joshi expressed concerns over the sessions judge rejecting the application, calling it a “serious matter”. Acknowledging that the sessions judge did not deem it appropriate to consider the medical urgency of the child, he stated, “The conduct of the learned judge, to say the least, is unbecoming of any judge.”

The court also noted the mother’s decision to oppose her estranged husband’s application, despite specifically admitting that their child needed to undergo the operation. The bench quashed the order passed by the sessions judge and directed the mother to hand over the child’s custody to the father in Aurangabad on May 28.

Further, considering the welfare of the child, the court directed the father to grant continuous access of the child to the mother while in custody. The father was also directed to file an affidavit and attach relevant documents to prove that the surgery was performed as required.