HC says child not chattel to be handed over

Mumbai: Holding that a child is not a “chattel” whose possession can be handed over from one person to another without understanding his/her psyche, the Bombay high court has stayed a family court order directing the father of a six-and-a-half-year-old child to hand her over to the mother for temporary custody.  

The court took cognisance of the father’s claim that despite his minor daughter being unwilling to go live with her mother due to two traumatic instances in January this year, the family court paid no heed and directed him to hand over her custody to the mother.

A vacation bench headed by justice A.M. Badar was hearing the writ petition filed by Anirudha Herwadkar against a family court order dated April 25 directing him to hand over his minor daughter to his estranged wife, Namita Herwadkar, for a few days.

Anirudha prayed in the petition that as his daughter was unwilling to go live with the mother, the family court order should be stayed.

He justified his claims by placing on record medical documents that showed his daughter had suffered bruises and tenderness while being with her mother in January and then again in February this year.

He said that after the incident, the daughter was traumatised and hence, did not want to go live with her mother. While requesting the family court to recall its order of giving access of his daughter to the mother, Anirudha requested an evaluation by a child psychologist which the court granted.

However, appointment of Dr Harish Shetty was challenged by Anirudha on the grounds that he was a psychiatrist and not a psychologist which the high court accepted.

“It is well settled that welfare of the minor is of paramount consideration in deciding even his/her temporary custody. Minors cannot be treated as chattel for claiming custody,” the court said.

The Bombay high court, while staying the family court order, said that custody would be with Anirudha until such time a psychological evaluation of the daughter was conducted.

The high court however allowed the mother to submit a list of psychologists after she objected to the list submitted by Anirudha to conduct the evaluation.