Wife Can’t Be Denied Custody of Minor Child Just Because She Has Field Job and Man is Working from Home: Delhi HC

The Delhi High Court has said that a mother cannot be denied custody of a minor child as she has been doing a field job while the father is working from home.

It said the overall welfare of the child, including her moral, mental, physical, educational and medical needs, has to be considered while handing over custody to either of the parents.

A division bench of Justice Suresh Kumar Kait and Justice Neena Bansal Krishna rejected the claim of appellant-husband that by working from home he will be in a better position to take care of the child than respondent wife, who due to official responsibilities may not be able to find time for it.

The court said that respondent-wife is educated and financially stable and can understand and take care of the overall welfare of the girl child.

The trial court here has handed over interim custody of the minor child, even upon referring to Section 6 of the Hindu Minority and Guardianship Act, 1956, which stated the natural guardian of a Hindu minor is father and after him the mother. It had noted that in case of children of tender age, the custody of the mother appears more natural and conducive for the development of the child.

The family court also said that the fact that wife is working cannot be construed to unfavourably judge her suitability to have the custody of minor and that the husband has admitted that he is jobless and has not disclosed his source of income.

In his plea, the man challenged the family court’s order of January 17, which, while deciding application under Section 12 of Guardians & Wards Act and Section 6 of the Hindu Minority & Guardianship Act, 1956 in respect of interim custody of the minor girl child of the parties, has inter alia granted her interim custody to the wife.

He submitted the wife has been working as Geologist with the Geological Survey of India and has to spend about 100 days in the field in remote areas in a span of eight months. On January 7, 2020, when the wife was away due to field work and had carried the girl child with her, he, surprisingly visited them on the birthday of the child and found that one of her colleagues was sharing her premises. On March 1, 2020, the wife went to Pune for her field job, she left behind the child with him and thereafter, abandoned her. In July 2020, he claims to have received a call from the wife that she wanted divorce and also wanted to take the child to Dehradun with her.

He also contended the wife has to travel to interior region for several weeks due to her job, where the family cannot live due to lack of amenities and in such a situation, she will not be able to provide good education and upbringing to the child.

The appellant averred that he is a Cost Management Accountant and works from home and is in a good position to take care of the minor daughter.

The wife, on her part, said, being a government employee, she is living in A class city like Pune, Dehradun, etc and has good medical facilities and other high-end facilities are also available to her. On the other hand, the husband is not working and has no source of income except for depending on his retired father who is taking care of household requirement. She also submitted that her service conditions can’t be used to deny her interim custody.

Citing Githa Hariharan Vs Reserve Bank of India, (1999), the bench said that the provisions of Section 6 (a) of the Act do not in any manner bound the parameters that the father shall be the natural guardian beyond the age of five years.

“Having regard to the provisions of Section 6 of the Act, while adjudicating issue of grant of custody of the minor child, the foremost aspect for deliberation by the court is the “welfare” of the child, irrespective of claims of father or the mother, of being better and competent than the other,” the bench said.

“While considering the “welfare” of the child, the courts are required to adjudge who out of the two shall be able to take care of the moral, mental, physical, educational and medical needs of the child in the best possible manner,” the bench added.

In the present case, the child was born in January 2019 and at the time of passing of the impugned order, she was four years old and thus, below five years of age within the meaning of Section 6 of the Act, the bench said.

“Even though grant of custody of a child should not be discriminated on the basis of gender of the child, but while granting custody of a girl child, who shall undergo physical changes with the growing years, the courts are required to be more considerate. Even in the present case, the girl child soon will be over the age of five years, however, in the considered opinion of this court, the facts of the present case warrant that her custody is given to her mother,” the bench said.

The court, however, granted visitation rights to the husband as an interim arrangement during the pendency of the guardianship petition.