Whether Mother can be denied custody of child on ground that she has Remarried or she is Divorced?

It is well settled that while deciding
the question of custody, the welfare of the minor child is of paramount
consideration.   In the case of  Mausami Moitra Ganguli Vs. Jayant
Ganguli1
 the Apex Court has observed as under:
"19. The principles of law in relation to the custody of a
1 (2008) 7 SCC 673

minor   child   are   well   settled.   It   is   trite   that   while
determining the question as to which parent the care and
control of a child should be committed, the first and the
paramount consideration is the welfare and interest of the
child and not the rights of the parents under a statute.
Indubitably   the   provisions   of   law   pertaining   to   the
custody of a child contained in either the Guardians and
Wards Act, 1890 (Section 17) or the Hindu Minority and
Guardianship Act, 1956 (Section 13) also hold out the
welfare of the child as a predominant consideration. In
fact, no statute, on the subject, can ignore, eschew or
obliterate the vital factor of the welfare of the minor. 
20. The question of welfare of the minor child has again
to be considered in the background of the relevant facts
and circumstances. Each case has to be decided on its own
facts and other decided cases can hardly serve as binding
precedents insofar as the factual aspects of the case are
concerned. It is, no doubt, true that father is presumed by
the statutes to be better suited to look after the welfare of

the child, being normally the working member and head
of   the   family,   yet   in   each   case   the   Court   has   to   see
primarily to the welfare of the child in determining the
question of his or her custody. Better financial resources
of either of the parents or their love for the child may be
one of the relevant considerations but cannot be the sole
determining factor for the custody of the child. It is here
that a heavy duty is cast on the Court to exercise its
judicial discretion judiciously in the background of all the
relevant   facts   and   circumstances,   bearing   in   mind   the
welfare of the child as the paramount consideration."
8. In the instant case, the girl child is about seven years of age.
She is in the care and under protection of the Respondent mother since
the time she was barely one & half years old. There is nothing on
record to indicate that the Respondent­mother has neglected the child
or deprived her of physical comfort and other needs and necessities due
to financial constraints.
9. The girl child of tender years would require mothers love,
care and affection. There is no material on record to indicate that there
are elderly female members in the house of the Appellant­father or

other children in the age group of the child to take care of the child or
to keep her company.  Under such circumstances depriving the child of
mothers care, company and guidance and further dislocating her from
familiar   surroundings   can   cause   mental   stress   and   psychological
trauma.  Thus, disturbing the custody will be detrimental to the interest
of the child.   We may add here that the Appellant­father's financial
position cannot override considerations of the welfare of the child.
Consequently, the Appellant­father cannot have preferential claim over
the mother solely because of his financial position. Rather it will be in
the best interest of the child if the Appellant­father makes valuable
contribution and takes care of  educational, medical and other needs of
the child. Such approach will ensure healthy growth and development
of the child.
10. Though the learned counsel for the Appellant­father has
submitted that the atmosphere in the parental home of the Respondent
is not conducive  for the welfare of  the child, we do not find any
pleadings to support such contentions.  We therefore, do not propose to
go into the merits of such allegations.  Suffice it to say that the mother
of the Respondent has married twice or that she is a divorcee is not a
relevant factor in deciding the entrustment of the child.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FAMILY COURT APPEAL NO.62 OF 2016
Shrirang Purushottam Deshmukh 
V
Smt. Radhika Shrirang Deshmukh 

CORAM  : A.S. OKA &
                   SMT. ANUJA PRABHUDESSAI, JJ.
    DATED  :  14th DECEMBER, 2016.

  
ORAL JUDGMENT : (AS PER ANUJA PRABHUDESSAI, J.):­
The   Appellant­father   has   taken   an   exception   to   the
judgment   dated   26th  November,   2015   passed   by   the   Family   Court,
Nashik in Petition No.D/11/2012 (old 99/2010) filed under section 25
of the Guardian and Wards Act, 1890.
2. The Appellant and the Respondent were married on 19th
July, 1992.  They adopted a girl child of six months old on 27th August,
2008.  The marital discord between the parties led to the Respondent
No.1 leaving the matrimonial home on 13th  December, 2009.   Since
then the Respondent­mother is residing with her mother alongwith her

minor child.  
3. The Appellant­father therefore, filed an application under
section 25 of the Guardian and Wards Act, 1890.  The main grievance
of the Appellant­father is that the Respondent­mother has no known
source of income and hence she is not in a position to maintain the
child.   He has stated that surroundings and culture of Respondent's
family   members,   specially   the   conduct   of   the   mother   of   the
Respondent, who has taken divorce twice, is unsuitable for the minor
child.  
4. The   Respondent­mother   contested   the   application   and
claimed   that   she   was   compelled   to   leave   her   matrimonial   home
because of cruelty inflicted upon her.  She claimed that the Appellantfather
has no love and affection for the minor child.  She also denied
that the atmosphere at her parental home is detrimental to the child's
welfare.  She has stated that it is in the interest and welfare of the child
that she remains in the custody of the mother.
5. Both parties adduced evidence in support of their respective
claims.   By the impugned judgment the learned Judge, Family Court

dismissed the said application.  The learned Judge was of the view that
it is not the financial capacity of the spouse for deciding the custody of
the   child   but   the   welfare   and   interest   of   the   child   which   is   of
paramount consideration.  The learned Judge held that the child is of
tender age and needs mothers' love and care. Being aggrieved by the
same the Appellant­father has preferred this appeal.
6. The main thrust of the learned counsel for the Appellantfather
is that the Respondent­mother has no source of income and is
not capable of taking care of basic necessities of the minor child.  He
has further submitted that the atmosphere in the maternal house of the
Respondent­wife is not conducive to the welfare or growth of the child.
7. We have carefully perused the record and the impugned
judgment and considered the submissions advanced by the learned
counsel for the Appellant­father.  It is well settled that while deciding
the question of custody, the welfare of the minor child is of paramount
consideration.   In the case of  Mausami Moitra Ganguli Vs. Jayant
Ganguli1
 the Apex Court has observed as under:
"19. The principles of law in relation to the custody of a
1 (2008) 7 SCC 673

minor   child   are   well   settled.   It   is   trite   that   while
determining the question as to which parent the care and
control of a child should be committed, the first and the
paramount consideration is the welfare and interest of the
child and not the rights of the parents under a statute.
Indubitably   the   provisions   of   law   pertaining   to   the
custody of a child contained in either the Guardians and
Wards Act, 1890 (Section 17) or the Hindu Minority and
Guardianship Act, 1956 (Section 13) also hold out the
welfare of the child as a predominant consideration. In
fact, no statute, on the subject, can ignore, eschew or
obliterate the vital factor of the welfare of the minor. 
20. The question of welfare of the minor child has again
to be considered in the background of the relevant facts
and circumstances. Each case has to be decided on its own
facts and other decided cases can hardly serve as binding
precedents insofar as the factual aspects of the case are
concerned. It is, no doubt, true that father is presumed by
the statutes to be better suited to look after the welfare of

the child, being normally the working member and head
of   the   family,   yet   in   each   case   the   Court   has   to   see
primarily to the welfare of the child in determining the
question of his or her custody. Better financial resources
of either of the parents or their love for the child may be
one of the relevant considerations but cannot be the sole
determining factor for the custody of the child. It is here
that a heavy duty is cast on the Court to exercise its
judicial discretion judiciously in the background of all the
relevant   facts   and   circumstances,   bearing   in   mind   the
welfare of the child as the paramount consideration."
8. In the instant case, the girl child is about seven years of age.
She is in the care and under protection of the Respondent mother since
the time she was barely one & half years old. There is nothing on
record to indicate that the Respondent­mother has neglected the child
or deprived her of physical comfort and other needs and necessities due
to financial constraints.
9. The girl child of tender years would require mothers love,
care and affection. There is no material on record to indicate that there
are elderly female members in the house of the Appellant­father or

other children in the age group of the child to take care of the child or
to keep her company.  Under such circumstances depriving the child of
mothers care, company and guidance and further dislocating her from
familiar   surroundings   can   cause   mental   stress   and   psychological
trauma.  Thus, disturbing the custody will be detrimental to the interest
of the child.   We may add here that the Appellant­father's financial
position cannot override considerations of the welfare of the child.
Consequently, the Appellant­father cannot have preferential claim over
the mother solely because of his financial position. Rather it will be in
the best interest of the child if the Appellant­father makes valuable
contribution and takes care of  educational, medical and other needs of
the child. Such approach will ensure healthy growth and development
of the child.
10. Though the learned counsel for the Appellant­father has
submitted that the atmosphere in the parental home of the Respondent
is not conducive  for the welfare of  the child, we do not find any
pleadings to support such contentions.  We therefore, do not propose to
go into the merits of such allegations.  Suffice it to say that the mother
of the Respondent has married twice or that she is a divorcee is not a
relevant factor in deciding the entrustment of the child.  

11. under the circumstances and in view of discussion supra,
we do not find any compelling reason to disturb the custody of the
child.   Accordingly we pass the following order:­
ORDER
The Family Court Appeal is dismissed with no order as to
costs.
    (ANUJA PRABHUDESSAI, J.)                        (A.S. OKA, J.)

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