SC hears 10-yr-old's cries, grants custody to father

NEW DELHI: Is the law blind to emotions? Ask the Supreme Court, which recently heard the cries of a 10-year-old, quickly changing its mind and agreeing to allow him to live with his contractor father instead of his teacher mother. The apex court, which seldom gets swayed by emotions while sticking strictly to the rulebook, during the hearing on the mother's petition seeking custody of her son, suggested to the boy that he live for some more time with his mother, probably to get him acquainted with her as he had never lived with her after the separation of his parents when he was just three years old. What followed was seldom experienced in a courtroom. The boy started crying and whined at the suggestion and refused to live with his mother, a teacher in DPS Panipat, primarily because he was attached to his father and also that it would mean his getting delinked with his set of friends in Allahabad. Putting aside a series of apex court judgments that had ruled in favour of mothers in custody battles over children, a bench comprising Justices C K Thakker and D K Jain quickly abandoned the proposal and said in deciding such tricky issues the courts should bestow paramount consideration to the "welfare and interest of the child and not the rights of the parents under a statute". Mausami Moitra Ganguli and Jayant Ganguly married in 1996 disregarding the opposition from their parents. Satyajeet was born to them in 1998. The relation between the parents got strained and the mother, employed as a teacher, was allegedly forced out of the matrimonial home at Allahabad on August 16, 2001. She returned to her parents in Kolkata and filed a divorce suit, which was decreed ex-parte in her favour on September 12, 2002. The father did not challenge the divorce decree and it attained finality. On April 5, 2003, she moved the Allahabad Family Court seeking custody of Satyajeet, alleging that the contractor father neither had a regular income nor did he have the time for the child and that future of the boy would be secured if he was brought up under the care of mother. The family court agreed and directed the child's custody to be given to the mother. Jayant appealed before the HC, which interviewed the child and reversed the family court order. However, it granted adequate visitation rights to the mother. Dealing with the mother's appeal challenging the HC order, the apex court said: "Better financial resources of either of the parents or their love for the child may be one of the relevant considerations, but cannot be the sole determining factor for the custody of the child." Justice Jain said: "It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration." The stability and security of the child was also an essential ingredient for a full development of child's talent and personality, he said. Noticing that the mother had shifted school from Kolkata to Chandigarh then to Panipat and that she was living alone, the bench said Satyajeet, except for a very short duration with his mother, had been living and studying in Allahabad in a good school. After interviewing Satyajeet, the judges rejected the mother's allegation that the father did not have sufficient time or resources to look after the welfare of the child. "We are convinced that dislocation of Satyajeet, at this stage, from Allahabad, where he has grown up in sufficiently good surroundings, would not only impede his schooling, it may also cause emotional strain and depression on him," they said. "It is also significant to note that during the course of hearing on one of the dates, when we had not interviewed Satyajeet, we had suggested that it would be better if the child could stay with his mother for some more time. However, upon hearing us, he started crying and whining and, showed reluctance to go with the mother. Watching his reaction, we dropped the proposal," the bench said. dhananjay.mahapatra@timesgroup.com
31 May 2008, 0406 hrs IST, Dhananjay Mahapatra,TNN
http://timesofindia.indiatimes.com