New Delhi: A family court at Saket has recently granted interim custody to their mother. Children are with their father who is a pilot in Dubai. The woman had approached the court for the interim custody of her minor. She returned to India in February 2024 after an alleged torture at the hands of her husband in Dubai.
Metropolitan Magistrate (Mahila Court) Sana Khan granted interim custody to the woman. The court had directed the husband to hand over the custody within three weeks.
The court ordered that considering the overall facts and circumstances of the case, this court is of the view that the complainant being the natural guardian of the children is fit to take care of the children and the welfare of the children will be well achieved if their interim custody is given to the complainant.
“Accordingly, respondent no. 1 (Husband) is directed to hand over the custody of the children to the complainant within a period of three weeks from the date of this order. The complainant will have interim custody of the children till the final disposal of this case, or their permanent custody is decided by a court of competent jurisdiction, whichever is earlier, ” the court ordered said on August 5.
The court emphasised that while deciding the custody of the children, the court has to look into various factors like their age, gender, preference and the suitability of the parties to ensure their maximum welfare. Unarguably, the respondent (Husband) is a man of means and capable of providing the best education, healthcare and lifestyle to his children.
“It is also undisputed that the financial capacity of a party is a compelling consideration however, sadly financial means is not the only ground to decide the custody of the children,” the court observed.
The court noted in the order respondent’s husband is a commercial pilot, who is admittedly away for work for 10-12 days a month. Although, he has hired a house help and also, called his parents to Dubai to take care of his children in his absence, however, such help cannot be a substitute for the mother of the children, who is not only alive but desirous of giving all care, love and affection to the children which only a mother can give. Both parties have almost equally good claims over the children.
It said that however, considering the tender age of the children, the odds are tilting a little more in favour of the complainant.
“This court is of the view, that if children are denied their mother’s company in such crucial and formative years of their lives, it would be detrimental to their overall development and well-being. There is nothing on record which shows that complainant (Wife) is unfit to have custody of the children,” they said in the order.
“Hence, I am of the view that children being given to their mother, who is yearning for her reunion with the children, would only help the children to grow and develop physically, physiologically and mentally,” the Magistrate said.
“Merely, the fact that complainant is dependent upon her parents for subsistence is no ground to deny her the custody of her children,” the court held.
The marriage of the complainant was solemnized on November 11, 2016, as per Hindu rites and customs. After marriage, the complainant started cohabiting with her husband who was in joint residence with his parents at Gurgaon/Delhi and continued residing with them till January 2019.
In January 2019, the respondent’s husband got a job as a Commercial Pilot with Emirates Airlines and therefore, the complainant shifted to Dubai with him. She gave birth to a daughter on June 27, 2019, and a son on August 1, 2022.
It is alleged by the complainant that soon after marriage, respondents started harassing her in relation to the demand for a dowry. All these atrocities continued even when the complainant shifted to Dubai with her husband.
It is argued by the complainant that she is very apprehensive about the well-being of the minor children as her husband is a Pilot and works for almost 15 to 20 days a month.
It was stated that there is no one to take care of the minor children, when he is away, due to his job. He had also called his parents to take care of the children in his absence, however, they are only on tourist visas and they eventually have to come back to India.
It is argued that the husband’s parents can not take care of the children permanently and, therefore, custody of the children should be given to the complainant, who is not only their mother but also their natural guardian as per the provisions of Hindu Minority and Guardianship Act, 1956.
Counsel for the husband stated that the children are having all the required comforts of their lives in Dubai. They are happy while living in Dubai and it is in their best interest that they continue to live in Dubai as they can get the best education and free healthcare in Dubai.
It is further stated that the family background of the complainant is questionable. Her father is a criminal, who has no source of income and was in fact, surviving on the complainant’s money prior to her marriage. It is also stated that the complainant has no source of income and, therefore, she can not provide the same quality education and lifestyle to children that the respondent’s husband is capable of providing.
It is also alleged that the environment of the complainant’s household is extremely suffocating and is detrimental to the overall well-being and personality development of the children.
It is once again pleaded that the husband has not only the will, but also the means to provide the best care to his children and, therefore, he should be permitted to retain the custody of the children.