The trial court has a duty to interview a 10-year-old child and understand his will

The trial court has a duty to interview a 10-year-old child and understand his will: Bombay High Court quashes order granting custody to father The Bombay High Court quashed the custody order citing the trial court's failure to interview the child to ascertain his will.  Justice Urmila Joshi Phalke of the Nagpur division bench referred the matter back to the trial court for a fresh consideration and said the trial court should conduct a closed-door interview of the child before deciding the matter.     "It is the duty of the trial court to produce the minor child before the court and interview the child in front of the camera to know about the alleged child with adequate understanding," the court said. If the trial court had conducted the interview, the trial court would have known many things like the child's willingness to come to a conclusion. There is a failure to ascertain whether the welfare of the child can be ascertained at the current place of residence of the opponent/wife.      The high court said that the trial court granted custody to the father only on the ground that the father was a natural guardian and it was better for the son to be in the custody of the father.     The court said the trial court was bound to conduct a thorough probe to ascertain the welfare of the child.  The child's parents got married in 2012 and he was born in 2013.  There was an argument and the wife left her husband. She filed a petition for restoration of conjugal rights, while she sought maintenance under Section 125 of the CrPC.      The husband sought custody on the ground that the wife's financial condition was not good for the child's sustenance. In addition, he is the natural guardian, as the child has attained the age of six years.      The husband further claimed that his son is not able to attend school, as his wife has left the matrimonial home with him.  He also claimed that his wife does not let him meet his son. In addition, the son is suffering from serious diseases and his wife cannot take the necessary special care.      The notice of the husband's application was given to the wife, but she did not appear before the trial court.  The trial court accepted the husband's application and directed the wife to hand over the custody of the child to him.    Therefore, the wife filed the present appeal before the High Court.  The wife said the notice was not served to her properly, so she had no opportunity to challenge her husband's application. Further, the trial court did not make necessary inquiries to the husband before and about the custody of the child.      He visited the wife's maternal home and served the notice to her father in her presence, bailiff reported.  Thus, the court held that the notice was served properly to the wife.     The court reiterated that the welfare of children is paramount in such cases.  The court said that the word "welfare" in Section 13 (welfare of a minor is paramount) of the Hindu Minority and Guardians Act, 1956, should be taken in a broader sense and moral turpitude to the child while deciding custody. There should be welfare. "Attention should be paid to the moral welfare of the child.       Although the provisions of special statutes govern the rights of parents, the paramount consideration is that of the welfare of the child.  In order to ascertain the welfare of the child, the trial court is bound to conduct a thorough investigation keeping in mind that the welfare of the child is paramount. Thus, the High Court referred the matter back to the trial court and directed it to take an expeditious decision on the matter after giving both the husband and wife an opportunity to hear it.     Case No- First Appeal No. 1031/2022

LEGAL UPDATE ** by Vicky Rastogi, Advocate, High Court, Allahabad.    Mob. no. +91-9456610104 **