When a 12-year-old boy, in a heated custody battle between his parents, said he wanted to stay with his mother, the Madhya Pradesh High Court held that a child’s preference to remain with a parent cannot, by itself, determine a custody dispute. The court, though, acknowledged the “importance of the mother’s care and guidance at this stage of the child’s life.”

A division bench of Justice Vivek Agarwal and Justice Avanindra Kumar Singh said that merely because a child had been living with the mother for a long time or preferred to stay with her could not, by itself, decide custody. “The Court must consider what is in the best interest and welfare of the child, including the importance of the mother’s care and guidance at this stage of the child’s life,” the bench said.

The court observed that a 12-year-old child is at an important stage of development. “At the age of 12, the child is more mature and is going through an important stage of emotional, mental and physical development,” it said, adding that the child’s relationship with his mother, education, emotional support and overall development were important considerations.

‘Love, care and company of mother important’

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The bench drew on the Supreme Court’s ruling in Vivek Singh v Romani Singh case, in which the apex court had considered the role of a mother in the development of a child. Referring to that judgment, the High Court noted that once the child in that case had reached eight years of age, she was entering a stage in which her “thinking and personality” were developing and “the love, care and company of the mother” were important for her proper development.

“In the present case, the ward is 12 years old and, therefore, the same reasoning applies even more strongly,” the High Court said.

The father had argued that the child was now old enough to take a decision concerning his own well-being. He also alleged that his visitation rights had repeatedly been violated, making it difficult for him to meet the child.

Disputing the allegations, the mother argued that a 12-year-old was not competent to independently decide what was good or bad for him. She also contended that the father had himself failed to avail the opportunity provided to him under an earlier HC order.

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The High Court also considered the father’s subsequent marriage as a relevant circumstance in determining the child’s welfare.

Relying on the Supreme Court’s judgment in Ruchi Majoo v Sanjeev Majoo, the bench observed that the father’s second marriage was an important factor, particularly in assessing whether he was genuinely willing to assume the day-to-day responsibility of raising the child.

The court said the facts of the present case were similar to those considered by the Supreme Court in the Ruchi Majoo case, where custody had been continued with the mother after the father’s subsequent marriage. Applying that principle, the High Court held that the child would be “better served by continuing in the custody of the mother”, where he could have “greater stability, continuity of care and emotional support”.

‘Father has the right to meet ward’

At the same time, the court made clear that retaining custody with the mother did not mean cutting off the father’s relationship with the child. “The appellant/father, being the biological father of the ward, has a right to meet the ward,” the bench said.

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The court, accordingly, made an earlier interim arrangement for visitation absolute. Under the arrangement, the father would be permitted to meet the child at a neutral place, while the mother would facilitate regular contact through video calls.

The bench directed that the father be allowed to meet the child every working Saturday, subject to the conditions specified in its order. It also directed the mother to facilitate a video call every Sunday from 8 pm to 8.30 pm, subject to the child’s convenience and educational schedule.

The court further directed the mother to share her mobile number after an undertaking was given that the father would not abuse the child, his mother or their relatives, directly or indirectly. If any such abuse occurred, the child and mother would be entitled to discontinue the conversation, the court said.