The Chhattisgarh High Court recently refused to grant custody of a minor girl to her father despite him being a natural guardian, observing that  a girl child aged between 10 to 15 years undergoes biological changes which cannot be taken care of by the father.

A Division Bench of Justice Goutam Bhaduri and Justice Radhakishan Agrawal opined that considering the interest of the child, it would be proper if the mother holds the custody of the child.

“It is also important to bear in mind a very germane biological aspect of the matter concerning puberty, privacy and care needed to a girl child at age between 10 to 15 years. At this juncture of life, the girl needs special care and attention from the mother. There are certain biological changes, which a girl child undergoes during this age, which cannot be taken care of by the father,” the court said.

The appellant-husband and respondent got married in 2009 and a girl child was born in the wedlock after a year. Since the birth of the child, the couple faced some issues in the marriage which eventually led to divorce.

After the wife filed a petition for maintenance, the husband moved the Family Court seeking the daughter’s custody. He argued that his wife had raised false allegations against him which defamed his reputation in society. He accused his wife of having an “attitude of criminal nature”, hence, being a natural guardian, the child should be given to his custody.

However, the wife denied the allegations and argued that the husband took her jewellery, and tortured her for dowry. She also argued that he abandoned her in 2012 without any rhyme or reason and didn’t even bother to meet his daughter. She also stated that she is taking care of her daughter as also providing proper education and, therefore, custody of the child may not be granted to the husband.

The Family Court dismissed the husband’s application. Aggrieved by this, he moved the High Court.

The Court looked into the Guardians and Wards Act and Hindu Minority and Guardianship Act to decide the case.

The Division Bench noted that it is well settled that in custody matters, the welfare of the minor child is the paramount consideration. Taking the reference of Goverdhan Lal & Ors v. Gajendra Kumar case,
the Supreme Court had held that while dealing with custody cases, due weight should be given to the child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings.

Therefore, it found that while the ultimate welfare of the child is the dominant factor when the Court is confronted with the conflicting demands made by parents, both demands are to be justified and custody cannot be decided on the legalistic basis.

Therefore, it held that the appellant’s argument that the father is the natural guardian cannot be given preference and welfare of the child would be the paramount consideration. Further, perusal of the evidence revealed that he did not have proper income to maintain his daughter and there was nobody home to take care of his daughter when he was at work. Similarly, no cogent evidence had been brought to prove that his wife had criminal tendencies. 

The Bench observed that the child being a 12 year old girl ki of needs the attention of a mother since there are certain biological changes at this age, which cannot be taken care of by the father. 

As such, the appeal was dismissed.