The Bombay High Court at Aurangabad has held that the mere fact that a mother has appointed a maid to assist in caring for her infant child does not constitute sufficient ground to deny her custody. Justice R. M. Joshi dismissed a writ petition filed by the father challenging an interim order of the Family Court that granted custody of a child aged below two years to the mother.
Background
The petitioner and respondent are legally wedded spouses and parents of a male child born on 12 June 2023. Following matrimonial discord, the respondent-mother initiated proceedings under the Guardians and Wards Act, 1890 (Petition D-3/2024) before the Family Court, seeking permanent custody of the child along with an application for interim custody. By order dated 30 January 2024, the Family Court directed that interim custody be handed over to the mother on 2 February 2024. The father was granted visitation rights twice a month and was directed to deposit ₹5,000 with the District Legal Services Authority, Aurangabad, for using inappropriate language in pleadings.
Arguments
For the Petitioner (Father):
The petitioner submitted that the respondent was medically unfit to care for the child, relying on medical records and a certificate diagnosing her with postnatal depression. It was argued that the Family Court erred by granting custody at the interim stage, which amounted to granting final relief. The petitioner relied on State of U.P. v. Ram Sukhi Devi [(2005) 9 SCC 733] and Bukharee Aezazalee Makhadumalee v. State of Gujarat [LAWS(GJH)-2013-2-22].
For the Respondent (Mother):
The respondent’s counsel supported the Family Court’s order and argued that there was no material indicating she was incapable of caring for the child. He referred to a medical certificate filed along with Civil Application No. 1590/2024, stating that the respondent was capable of caring for herself and her child. It was submitted that the burden lies on the father to prove the mother’s incapacity under the law and that the interim relief did not amount to permanent custody. Reliance was placed on Roxann Sharma v. Arun Sharma [(2015) 8 SCC 318], Pushpa Singh v. Inderjit Singh [1990 SCC (Cri) 609], and Swapnil s/o Dinesh Adhyapak v. Mansi w/o Swapnil Adhyapak [Criminal Revision Application No. 60/2021].
Court’s Analysis
Justice Joshi reiterated that “the interest of the child and his welfare is of paramount importance.” Referring to Pushpa Singh (supra), the Court noted that the burden lies on the father to establish that the mother is unfit to care for a child below five years of age.
The Family Court had considered medical documents and found:
“Anxiety/depression is not a very serious issue… Feeling nervous now and then is not so much abnormal… No instance is quoted by the respondent that the petitioner caused/tried to cause harm to the child… All these things show that though she is having some kind of anxiety issue, she is leading her life as a normal human being.”
The Court also cited observations regarding breastfeeding:
“Mother’s milk is most important for a child’s physical and mental development. Breastfeeding is an inalienable right of a lactating mother protected under Article 21 of the Constitution of India. Similarly, it is the right of the suckling infant for being breastfed too.”
It noted that a certificate issued by the Civil Surgeon, Aurangabad, confirmed the child’s normal health and that the respondent’s medical certificate dated 3 February 2024 did not indicate any incapacity. Further, Justice Arun R. Pednekar, by order dated 6 February 2024, had interacted with the respondent and observed no symptoms of anxiety.
Regarding the argument that the mother had appointed a maid, the Court stated:
“Even if it is accepted that a maid servant is engaged by respondent, it is not uncommon for a maid servant to be engaged where there is small child in the house. In such circumstances, the said fact even if it is accepted to be true will not become a ground to cause interference in the impugned order.”
The Court emphasized that the child had been in the mother’s custody for approximately eight months and no evidence was presented to suggest that this arrangement was against the child’s interest.
Decision
The Court found no merit in the petitioner’s argument that the Family Court granted final relief at the interim stage. It observed:
“There is no order of granting permanent custody of the child to the respondent herein.”
Regarding the cost imposed on the petitioner for derogatory language in pleadings, the Court quoted the Family Court’s findings, which referred to the Supreme Court’s Handbook on Combating Gender Stereotypes, and upheld the ₹5,000 cost as appropriate. The Court noted:
“Use of such language is improper… For using such inappropriate language, some amount of costs needs to be imposed on the respondent.”
Justice R. M. Joshi concluded that there was no justification for interfering with the Family Court’s interim order. The writ petition and pending civil applications were accordingly dismissed.
