Jaipur: Rajasthan High Court sets aside the decision of the family court of Sawai Madhopur to give custody of a child to the father without seeking the child's view and ascertaining his age.
The
HC has referred the case to the family court to decide the matter afresh in the light of the fact that whether the guardian has the capacity to look after the child and also the child's wish. The court order followed after the mother challenged the decision of the family court.
The division bench of Chief Justice Pradeep Nandrajog and Justice G R Moolchandani said that the family court has misdirected the enquiry while deciding the claim by the mother for custody of the minor child.
The order said, the judge proceed without ascertaining whether the child was an infant or above five years and proceeded on the legal principle that other than infants the father would be the natural guardian of the child.
The HC said that the issue of custody has nothing to do with the guardianship. It further said no evidence was recorded by the family court judge regarding the means of the father as also the means of the mother to look after the child.
The high court said, if the mother is residing with her parents who are supporting her and they had the means that would be relevant for the purpose of where the child should reside. Besides, the child's wish was not taken in to consideration. The high court further said no visitation right of the mother was taken in to consideration by the family court.
The asked the family court considers afresh the case with direction that evidence regarding the means of the parents had to be recorded. Wishes of the child be ascertained and pending litigation mother of the child would be given visitation rights.
