Unproven criminal charge cannot be deciding factor in custody of child

A recent judgment of a Delhi trial court rejected application of woman asking for daughter’s custody from husband on the grounds that the husband was facing attempt to murder charge.

http://timesofindia.indiatimes.com/city/delhi/Man-facing-criminal-cases-gets-daughters-custody/articleshow/5514940.cms

NEW DELHI: Is a man accused of “attempt to murder” fit to raise a child? Well, a trial court seems to think so. Taking an unconventional stand while awarding the custody of a six-and-a-half-year-old child to her father, who has three criminal cases pending against him, a trial court affirmed its point of “not to judge a book by its cover”.

First of all, in India the ease with which false cases can be filed by powerful people should make anyone suspicious of judging someone simply by the fact that they have a criminal case pending.  The same tactic was allegedly used by ex-DGP Rathore on victim Ruchika’s family by getting cases filed on her family members.

Holding that a father can only be “deprived” from the custody of the child if the reasons are “compelling”, the guardian judge at Tis Hazari recently rejected the plea of the child’s mother seeking custody on the grounds that her estranged husband was a criminal and was not fit to take care of their child.

“Two criminal cases are recently registered against the accused. It cannot be said that he is a habitual offender and his association with the child would be adverse to her interests. It would not be conducive to her welfare if is she is removed from her familiar surroundings,” the guardian judge said.

Ahana (name changed) had been staying with her father for the past two years when her mother left her marital home. Her mother moved the court seeking her custody on the grounds that criminal cases were pending against her estranged husband, including that of attempt to murder, which has a maximum punishment of life term. In her petition, she further stated that her husband was “absconding (from) the process of law and there was no one to take care of her daughter”.

The deciding factor in child custody cases is the principle of welfare of child.  From above case the mother of child was not with her for 2 years and that is stronger argument in favour of father in this case.

Ahana’s father, however, opposed the plea saying that he was taking appropriate legal steps for seeking bail in the cases filed against him and he was taking care of his daughter’s “moral, educational, medical and psychological needs”. Not satisfied with the arguments, the court called Ahana for a chamber hearing where she expressed her wish to stay with her father.

It is difficult to see why court could not be satisfied with the argument that father was taking care of child’s needs.  After all, if mother was not there then it has to be some other family member who will take care of child.  If child’s interview could be the only factor in custody case, then courts could dispense with arguments and evidences altogether and simply ask the child for his/her preference.

After going through the girl’s educational record and personal interaction, the court said, “She (Ahana) preferred to stay with her father. Though she is in tender years but she is intelligent enough to form an opinion with regards to her preferences. The court must pay due regard to her preferences in arriving at a just decision with respect to her custody.”

Lending a compassionate view to the bond shared between the father and daughter, the court said that it would be right for the child’s well-being to stay with her father and the mother’s application held no merit. “In my opinion, the father should not be deprived of the custody of the child at this stage,” the court added.