Child can't comprehend maternal love with father': SC gives girl's custody to mother

New Delhi: An eight-year old girl was united with her mother after over six years by the Supreme Court, which said it was not possible for the child to comprehend the comfort of maternal love while staying with the father.

The girl was separated from her mother when she was only 21 months old after her parents separated due to matrimonial discord, with the father getting the infant's custody.

The mother, a school teacher who was allegedly forced to leave her matrimonial home, contested the custody of her child before a family court, which dismissed her plea.

She then challenged the order in the High Court which gave the child's custody to her and the father visitation rights. The father, an army officer, then challenged the high court order in the apex court.

During the proceedings, the girl, how eight years old, told the apex court and the counsellor appointed by it that she wanted to live with her father and did not wish to change her existing environment.

Her father also contended that the girl was comfortable living with him and he has been taking care of her since the mother left.

However, the apex court bench of Justices J Chelameshwar and A K Sikri observed that "a child, who has not seen, experienced or lived in the comfort of the company of the mother is, naturally, not in a position to comprehend that the grass on the other side may turn out to be greener.

"Only when she is exposed to that environment of living with her mother, that she would be in a position to properly evaluate as to whether her welfare lies more in the company of her mother or in the company of her father."

It granted custody of the girl for one year to the mother and asked her to get her admitted in the school in Delhi where she was teaching.

Ruling in favour of the mother, the court said it was her misfortune that despite getting a favourable order from the High Court, she was not able to reap its benefit because of the interim orders passed by apex court staying the verdict.

Regarding the matrimonial dispute, the court said it cannot turn a blind eye to the fact that there have been strong feelings of bitterness, betrayal, anger and distress between the father and mother, where each party felt they were 'right' in many of their views on issues which led to their separation.

"The intensity of negative feeling of the appellant towards the respondent would have obvious effect on the psyche of girl child, who has remained in the company of her father, to the exclusion of her mother.”

"The possibility of appellant's (father's) effort to get the child to give up her own positive perceptions of the other parent, i.e. the mother, and change her to agree with the appellant's view point cannot be ruled out, thereby diminishing the affection of child towards her mother," it said.

The apex court, which listed the matter for March 2018, was hearing a petition filed by the father, challenging the High Court order granting the girl's custody to the mother. The couple had married in 2007 and the girl was born the next year.

Soon after the marriage, differences surfaced in their matrimonial life and in 2010, after the events took ugly turn the woman was forced to leave the matrimonial house with father keeping the child.

Dealing with the psychological aspects of the case, the apex court said "empirical studies show that mother infant bonding begins at the child's birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver.

"An infant typically responds preferentially to the sound of its mother's voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her.

"Psychological theory hypothesises that the mother is the centre of an infant's small world, her psychological homebase, and that she must continue to be so for some years to come", the bench said.