Calcutta High Court gives custody to dad after 13-year-old chooses him over mom

KOLKATA: The Calcutta High Court recently let a 13-year-old boy, in the midst of a bitter parental custody battle, decide for himself whom he wanted to stay with, saying he was "intelligent and matured enough" to decide the matter on his own.
The boy was allowed to return to his father, who lives in a joint family, and stay with his grandparents and uncles. The mother was given twice-a-month visitation rights and permission to interact with the child on phone or video calls over the weekend and a month's custody per year.
The father, who's a schoolteacher based in Balurghat, his parents and brother are out on bail but facing criminal charges filed by the wife, a Malda-based academic, for physically and mentally torturing her. The couple are also locked in divorce proceedings.
Married in 2008, their son was born in 2010. The marriage broke apart in 2017, when the wife left her in-laws' home with the child and lodged a criminal case. The custody battle is also being fought in the courts for the last six years. The high court heard the case after the father complained that he was not being allowed to meet his son for these six years.
"The child is intelligent and matured enough to decide his custody. He is capable of forming an intelligent preference regarding his custody," the division bench of justices Soumen Sen and Uday Kumar remarked in their order on February 28. The child had told the judges that he was "very happy" at his father's place, in the joint family. At his mother's in Malda, however, he felt lonely after coming home from school, he told them.
The child told the court that ideally, he wanted to stay at his father's place with both parents. The court at first tried to save the marriage, but was not successful. The court even proposed joint parenting, which also failed.
The Bench said: “The court should not allow such bitterness between parents to affect the child.”It referred to a Supreme Court order that said that the welfare of a minor child would prevail over the legal rights of the parties in a custody battle.
“The court is not bound either by statutes nor by strict rules of evidence nor procedure or precedent,” the HC remarked, adding, “In deciding the issue of custody, the paramount consideration should be the welfare and wellbeing of the child.” The HC said that the creation of any “unwanted situations in order to separate the child from the father should not be condoned or encouraged just because the applicant is the mother of the child.”
“There are numerous instances where the father was able to fill up the void created by the absence of the mother.” The HC did not approve the manner in which the child was taken away by the mother from the Balurghat private school where he studied, saying frequent change of places and schools would affect a child “adversely”.
The HC also refused to buy the argument that just because the child’s grandfather was a retired school clerk and grandmother an Anganwadi worker, they could not bring up a child better than his maternal grandparents, who were school principals. The court even asked the principal of the private school where the child studied from KG, before his parents separated, to readmit the child.