The appeal has been filed before the Honorable Supreme Court pursuing to the order passed by the High Court of Bombay dismissing the custody of the child to the appellant in the matter.
The Appellant and the respondent got married in the State of California in the United States of America and pursuing to the wedlock they had a kid whose name mentioned herein is Thalbir Sharma. The couple, after quite a few times there, returned to India and were residing in the city of Mumbai. There were instances of difference between husband and wife due to which there was a petition filed under the law for dissolution of marriage. They also filed a petition under the Hindu Minority and Guardianship Act, 1986 for receiving the custody of the only child they had. The mother had the custody of the child while the proceeding of the court was ongoing and she also filed a petition before the court pleading for interim relief to pass and restraining order against her husband for curbing the visitation rights towards their son.
Responding to the plea of the appellant respondent also filed for the grant of the custody of the minor. The then petitioner received the order of interim relief sought for against the then petitioner. Following the issues raises both the counsel appointed by both the party in Trial court the issue was ruled out in mother’s favour, but after the appeal been filed by the father in the High Court, the decision was dismissed and ruled in favour of the father granting him the custody of the child. It was also added that the mother of the child has a psychological bipolar disease, and the petition also mentioned that the father of the child was an alcoholic and was jobless.
1. Whether the order restraining the father from the child by the Trial Court valid?
2. Who is an appropriate person to be granted custody of the child?
The Honorable Supreme Court in its observation states that in the above case it is important for the court to restrict its interpretation of the law in the aspects related to transfer or ascertaining the custody of the infants involved in the matter. The Honorable Supreme Court should before forming an opinion should resolve the issues related to custody by due consideration to the minor and he’s welfare, in the matter of matrimonial dissolution it is important to see whether there any way to resolve the issue with counselling and other dispute resolution method especially when there is the child who is suffering from a disease. The welfare of any child is of paramount importance to the court in any dispute arising out of divorce. The Honorable Court states that it is very important for every kid age five years old to with the mother in order for proper upbringing of such kid unless it by evidence to provide that such person (mother) of the kid is a harmful person and inappropriate for the child’ custody.
It is said that the word ‘ordinarily’ does have to understand in the narrower sense, but the interpretation has to be assumed in favour of the mother. In the above case, the court can clearly observe that there was no proof to be recorded by the court to back the theory presented about the mother’s bipolar disease, also the court clearly perceives the welfare objective of the kid, and he seems comfortable in the custody of the mother who is the appellant and a qualified degree holder of Master in Arts from the University of Howard and currently a professor in the state of California. The Court further also rightly states that it was the considerable fact that the mother of the infant child herein is an educated mother and has a degree, the facts also stated that the mother of the child has a job as the professor and such job accrues a sum of amount as salary every month that will be vital in taking good care of the child.
It was in the court’s observation proved that the father of the son, herein the respondent, was at the time, jobless and was also an alcoholic. The Narcotic and Rehabilitation centre confirms the father was a member of the rehab centre being a drug addict. The Court further held that both the parties to the dispute should submit their passport to the court until a further order issued. The appellant will be allowed to stay for a further unaccounted period in the State of Goa. The Court, while the hearing continues, allowed the mother of the child for temporary visitation right as directed and agreed mutually. It will also be advisable that a social worker should be appointed, as stated by the Maharashtra State Legal Service Authority. The court had the advantage for receipt of such report with the diligent effort which further concludes the initial reluctance showed by her son name (Thalbir) towards her approach and which later was receded very quickly as understood by the natural love and affection and motherly approach, the reluctance might have been due to various result, but under no doubt, such can be the action that should be termed suspicious by the court.
The Court further advised and directed Mrs Deepali Ajay Satpute to be involved with the matter with the appellant and responded and help, guide and record their daily activities between them and their son. Mrs Satpute, further in her report, mentioned the threats involved from the respondent (Arun Sharma) and pleaded to take action against the matter. The court on the report submitted by Mrs Deepali Satpute prohibited and restricted the movement of Arun Sharma, directly and indirectly, to contact the appellant by anyone, including the family member of the respondent. The court allowing the appeal of the respondent (mother) decided the custody of the child in favour of the mother and disposed of all the appeal therein.