The Punjab and Haryana High Court, while giving the custody of a male and female child to their mother, has said that “the male child cannot be separated from his sister as the same would traumatise both of them”.
According to the case, the woman (petitioner) was married to the husband (respondent) on May 3, 2008. The marriage resulted in a male child on July 16, 2009 and a female child on March 13, 2017. The male child is currently around 11.5 years old and the girl is around 4 years old. In the meantime, her parents separated on February 16, 2019.
The petitioner stated in her complaint that she had been thrown out and was not allowed to take the children with her, while the husband said she had left the family.
The bench of Justice Sudhir Mittal said, “Children are innocence personified. For their ideal development, it is essential that the period of innocence be cherished and protected. This, however, remains a pipe-dream where parents clash..”
After an Amicus Curiae appointed by the court to assess the best interests of the children submitted her report on August 14 last year, it emerged that the children miss their mother’s company. The Amicus Curiae’s report also mentioned that the male child being older in age, is being indoctrinated against his mother. Despite the same, he is keen on meeting his mother and enjoys her company.
The counsel for petitioner contended the girl child is below 5 years of age and Section 6 (a) of the Hindu Minority and Guardianship Act, 1956, stipulates that custody of such child should ordinarily be with the mother. The petitioner is working as a teacher and lives with her parents who are extremely affectionate. In such an environment, the children would blossom whereas in the company of their father and paternal grandparents they are withering, submitted the petitioner counsel.
However, the Respondent’s lawyer alleged that the petitioner alleged that she had no resources to sustain herself. Therefore, custody of the children cannot be transferred to her because she would not be able to support them.
The girl is under the age of 5 and, for the purposes of Section 6 (a) of the Minorities Act, her best interests would definitely be in the care of the mother. The male child cannot be separated from his sister as the same thing would traumatize both, Justice Mittal said.
The bank instructed that custody of the minor children should be transferred to the petitioner.
