Child should be treated as human being and not like toy: Bombay High Court in custody case

A child in a custody battle cannot be used as a toy by his parents but must be treated as a human being and his interests must be given paramount importance, the Goa bench of the Bombay High Court recently observed in a child custody case..Single-judge Justice Bharat Deshpande made the observation while granting equal custody time to both the mother and the father of a child during the child's summer vacation."It is necessary to note here that a child cannot be considered as a toy for the purpose of compensating parents for their lost visitation rights. Child has to be treated as a human being and the most important aspect is the best interest of the child which has to be of paramount importance," Justice Deshpande observed in June 14 order.The order came on a plea filed by the mother seeking to quash the family court's May 8 order by which it had granted seven weeks custody of the child to the father and five weeks custody to the mother.The parties were US citizens and their marriage took place in California. The child was born in February 2019 in Paris. However, soon the relations between the two turned sour and the father brought the child to Goa after a court in California granted him the child's custody in an ex-parte order. Subsequently, the mother too reached India and the estranged couple filed custody proceedings before the family court in Mapusa.The High Court in its order noted that it had in October 2023 modified a family court's June 2023 order and granted visitation rights to the father while upholding the child's custody with his mother. However, the father could not avail the visitation rights due to the ill-health of the child.Accordingly, another application was filed before the family court at Mapusa by the father seeking custody of the child during the school vacation.The family court, by passed an order on May 8 this year, noted that the father could not avail visitation rights due to the child's ill health. Therefore, it granted him seven weeks custody of the child during the summer break while granting only 5 weeks to the mother.The mother then moved the High Court against the same.The High Court refused to accept the contention of the father that lost visitation rights could be compensated and therefore, the family court has rightly granted more time to him.The judge said that the order of the family court granting seven weeks custody of the child to the father was against the best interest of the 5-year-old child. "For a child of such tender age the presence of the mother is of utmost importance. However, it cannot be ignored that the father also needs to be considered for the purpose of custody and visitation rights," the Court said.The paramount interest of the child needs to be considered along with the fact that he is entitled to stay with both his parents during the vacation period, the single-judge opined. Hence, it would be appropriate to equally divide the period of vacation amongst parents, the Court ruled.."Parents as well as child is entitled to utilize such vacation for the purpose of spending quality time with the father as well as the mother and their respective relatives so as to maintain and keep the bond in between the family members. Child needs an opportunity to become acquainted with the family members of the father as well as that of the mother," the order said. Therefore, the Court held that the vacation of 11 weeks could be divided equally between mother and father.It, therefore, granted five weeks custody to each of the parents..Advocates A Agni, Adarsh Kothari and J Shaikh appeared for the mother.Additional Government Pleader SP Munj represented the State.Advocates C Collasso and V Poulekar represented the father.https://x.com/barandbench/status/1803280135308640536