8-Year-Old Child Old Enough To Form Intelligent Preference As To With Whom She Wants To Stay: Punjab & Haryana HC Declines Mother’s Plea For Custody
The Punjab and Haryana High Court, declined a mother's plea for child custody, observing that an eight-year-old minor child is old enough to form an intelligent preference as to with whom she wants to stay.
A Habeas Corpus writ petition was filed by the mother of an 8-year-old to release her daughter who was in unlawful and illegal custody of the mother's second husband and his family. The daughter was born out of her first marriage. She mutually divorced her ex-husband and was granted custody of the child. Following her subsequent marriage, the present husband and his family were accused of illegally detaining the minor girl.
A Single Bench of Justice Deepak Gupta observed, “No doubt that in this case also, the private respondents are not the lawful guardians of the minor .....whereas petitioner being the real mother is the natural guardian, but at the same time, court cannot ignore the fact that minor is now aged 8 years, who is strongly attached to respondent No.7 and has flatly refused to accompany her mother-petitioner to the extent that when this Court directed handing over the custody of the child to petitioner-mother, the minor started crying loudly in the Court and later on also expressed before this Court her clear intention that she wanted to accompany respondent No.7 and not the mother.”
Advocate Vipan Kumar Sharma represented the petitioner, while AAG Sarabjit Singh Cheema appeared for the respondents.
The mother had claimed that her daughter was being treated as a servant and the behaviour towards her was cruel, as the husband and his family were not even providing basic needs. She argued that being the real mother she was the lawful guardian of the minor child, while her second husband and his family had no relationship with the child since the child was born from her first wedlock.
Contrary to the mother's complaint, the daughter asserted that her mother did not take care of both the sisters, failing to provide food. The two sisters were locked in separate rooms, where they cried. The daughter did not wish to go with her mother. The second husband and his mother recorded that educational expenses and the maintenance charges of the child were being borne by them.
The High Court discussed the Supreme Court’s decision in Nil Ratan Kundu & Anr v. Abhijit Kundu, 2008(3) RCR (Civil) 936 where the Apex Court had held that “A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child.”
The High Court applied the legal position established in the Nil Ratan Kundu Case and held that the minor child being aged above 8 years, is old enough to form an intelligent preference as to with whom she wants to stay and that “This Court cannot ignore the wishes as expressed by the child.”
The Court concluded, “Considering the fact that petitioner is the real mother of the minor and that with the passage of time, minor may develop some bonding for the mother, it is directed that petitioner will be allowed by the private respondents to meet the minor child daily during any time between 10:00 AM to 06:00 PM. It is however made clear that by way of this order none of the private respondents are being declared as the lawful guardian(s) of the minor .”
The custody of the child was directed to the second husband and his family, and subsequently, the High Court dismissed the writ petition.
Cause Title: Rajwinder Kaur v. State of Punjab & Ors. (2024: PHHC: 000045)