5-yr-old girl’s custody: Karnataka high court quashes Family Court order

Bengaluru: With divorce cases on the rise, it is the children, especially the minor ones, who are at the receiving end. The legal battles pertaining to which parent gets the custody takes a toll on them.

In a case involving the custody of a five year old girl, the family court has erred in granting custody to the father, while the law laid down by the Supreme Court states that the custody of a minor child should always be with the mother, unless there are any compelling circumstances.

The 47-year-old mother had approached the High Court challenging the Family Court order granting custody of her daughter to the father.

She had petitioned that the child was taken away from school by the father and then he initiated a proceeding under Section12 of the Guardian and Wards Act, 1890 seeking interim custody of the minor girl child. Thereupon, the Family Court by an ex-parte order granted interim custody to the father of the minor girl child.

She then filed an application seeking vacation but the court denied her custody of the girl child. However, she has been granted visitation rights and interim custody during the summer, Dasara and Winter vacations.

“In the instant case, the order has been passed by the Family Court in a perfunctory manner which suffers from the vice of non-application of mind,” the HC observed in its order.

It further added that the well settled legal position that while deciding the issue with regard to the custody of the child, the welfare of the child is of paramount consideration, which has not at all been considered by the Family Court.

“The child is a girl child and is aged about 5 years. Therefore, her custody is required to be granted to her mother, in view of the law laid down by the Supreme Court. However, the aspect of the matter has not been considered by the Family Court," the court said.

It is pertinent to note that while passing the order, the Judge has nowhere narrated the compelling circumstances warranting a deviation from the well settled legal proposition that the custody of the minor child should always be with the mother, the High Court stated, adding that no compelling circumstances is narrated while directing custody of the girl child to the father.

“Ordinarily, this Court (High Court) would have remitted the matter to the Family Court afresh for decision in accordance with law. However, in the peculiar fact situation of the case, since the law laid down by the Supreme Court has not been taken into account by the Family Court, therefore, the order passed by the Family Court is per incuriam. Therefore, the order not only suffers from jurisdictional infirmity but error apparent on the face of the record,” the HC ordered, while quashing and setting aside the family court order with directions to the father to handover the custody of the girl child to the mother of the child.