High Court of Gujarat: While examining the legality and validity of the impugned judgment and order passed by the learned Family Court, the Bench comprising of M.R. Shah and A.S. Supehia, JJ., dismissed the appeal filed by the appellant father whereby he wanted the permanent custody of his minor son Rehan contending that as the respondent mother is serving she will not be in a position to take proper care of the minor son and held, that there is a specific and clear finding recorded by the Family Court while considering the issue of custody of the minor child which in the present case has been granted to the respondent mother on the ground that merely because the respondent mother is serving, it cannot be assumed and/or presumed that she is not able to take care of the minor child.
The appellant contended that he worked as an Associate Professor in the Pathology Department of Pramukh Swami Medical College, was well educated and financially more sound than the respondent, an Engineer SD Senior in Institute for Plasma Research, Gandhinagar, and being the natural guardian of the child under Section 25 of the Guardian and Wards act, 1890, he will be able to take better care of the minor son. The appellant vehemently submitted that the Family Court had materially erred in not giving permanent custody of the minor son to him since the respondent and her family members are working and not in a position to devote more time for the welfare of the minor son whereas his father (Rehan’s paternal grandfather) had retired and could easily look after the child therefore, it will be in the larger interest of the son if permanent custody of Rehan is given to the appellant. Further, the appellant also prayed for permanent custody of his son instead of the visitation rights of meeting Rehan on every 2nd and 4th Saturday from 3 pm to 5 pm at his mother’s residence since, the wife had many a times deliberately created such circumstances that didn’t allow him to meet his son.
The respondent mother while opposing the submissions of the appellant vehemently submitted that apart from the amount that the father paid towards the child’s maintenance pursuant to the court’s order, he did not take care of the child. Further it was submitted that the respondent being a mother can take proper care of the minor child than the appellant father and is taking care of her son in the field of education as well as in other extra curriculum activities. The respondent mother also pointed out that since the husband had a demanding job, he didn’t have enough quality time to spend on his child, adding that he wasn’t even willing to pay for the medical treatment of their child.
The Court while rejecting the appellant’s submissions held that since both, the appellant father and respondent mother are working therefore, the submission on behalf of the appellant husband that the respondent mother is working woman-mother, and therefore, will not be in a position to spare time for the welfare of the minor child is concerned, the same has no substance as in that case, it can be argued that as the appellant is also serving he will not be in a position to take proper care of the minor child. The Court held that merely because the mother is serving, it cannot be assumed and/or presumed that she is not able to take care of the minor child as in these days, so many mothers are working and still they are taking care of the children further, on appreciation of evidence it has come on record that despite the fact that the respondent is working she is taking care of the minor child.
Hence, the Court observed that the paramount interest of the minor child would be to continue the custody of the child with the respondent mother since the child is happy and very much firm on living with her therefore, the Family Court had not committed any error which called for interference, while refusing to grant permanent custody of the minor son Rehan to the appellant father herein. The Court further held that the visitation rights of the father will be subjected to the convenience of the wife and minor son. [Faruq Ibrahimbhai Mulla v. Karishmabanu Anwar Hussain Qureshi , 2016 SCC OnLine Guj 2656, decided on September 30th, 2016]
