Roxann Sharma

v.

Arun Sharma (2015)

• Facts-

1. 1. Roxann Sharma and Arun Sharma married in U.S.A and had a child named Thalbir Sharma. After sometime they returned India and started residing in Mumbai.

1. 2. It was stated the husband and wife had differences with one another and an application for dissolution of marriage was filed and afterwards a petition was filed under Hindu Minority and Guardianship Act, 1956 for guardianship and custody of Thalbir sharma.

1. 3. During the pendency of case the child was living with the petitioner when other cases involving divorce and domestic violence were being heard by the court. Meanwhile an application for interim relief was filed by the wife seeking that the husband should be restrained from taking the custody of the child from her.

1. 4. Respondent also filed an application for the custody of Thalbir Sharma. The petitioner got the orders from court of law regarding the custody of minor boy and restraining the respondent from taking the custody of the child from her.

1. 5. The learned trial court judge gave the order in favor of the mother but the High court reversed the said order and passed the order in favor of the father that the interim custody shall be given to the father.

1. 6. Aggrieved mother filed an application to SC challenging the said order of the High court.

1. 7. It was argued that the mother had Bi-polar disease and from the petitioner side it was argued that the father was Alcoholic and jobless.

1. 8. The court held that since the mother was working and till 5 years of age child should be in custody of the mother.

 

Contentions Raised-

• Petitioner-

1. The petitioner filed this case for custody of her child.

2. It was argued the High court reversed the order of Trial court wherein it was stated that no forceful custody of the child could be taken was held.

3. it was also stated that father was jobless and Alcoholic.

4. They also stated that the custody of a child below five years of age should ordinarily be with mother.

• Respondent-

1. The respondent argued that father also takes part in the upbringing of the child.

2. It was also argued that the mother had no permanent residence in India.

3. She had not disclosed any fixed address in Goa.

4. The mother was suffering from Bi-Polar disorder.

 

• Issues Raised-

1. Whether the father can be given the custody of child who is a minor?
2. Whether the mother can be restrained from taking the custody of the child afterwards?

 

• Significance of the Judgment-

1. The Supreme Court in this landmark judgment held that the custody of the child below five years of age should be given to the mother unless it is proven by the father that custody of child to mother would hamper the upbringing of the child.
2. The court held that the word “ordinarily” in section 6(a) of HMG act, 1956 is a presumption in favor of mother with rebuttal.
3. It was also stated that the mother is not suitable of such custody the burden of proof lies before the father.
4. The SC also held that father’s background and other relevant factors comes into consideration only when they doubt the suitability of mother. Since the father was not working and was alcoholic and drug addict and has also been the member of narcotics and had joined rehabilitation.
5. The court also held that the HMG act,1956 protects the father right also as a guardian over the property but not over the the child person who is below five years of age.
6. It was also stated that no provision of any law/act disqualifies the mother with custody of the child after five years of age.
7. It was also held that the child paramount interests would be served by the mother, the mother holds a master of Arts degree from Howard university, Washington D.C. and I a tenured college professor in a college in California and her Bi-Polar disorder could not be specifically proven.
8. The SC also directed the social worker Mrs. Deepali Ajay Satpute to get involved with both petitioner and respondent and make daily report of all the activities taking between them with their son.
9. In her report Mrs. Satpute wrote about the danger associated to her with the respondent Arun Sharma and the court directed Mr. Arun Sharma to neither directly or indirectly through any member of his family or friends to contact Mrs. Satpute.
10. Passport of both the parties were deposited in court which would be given to the parties on the prior order of court. The mother would continue to reside in Goa till the competent court grants her to relocate.
11. On the basis of the above facts the SC allowed this petition and the mother was given interim custody of Thalbir Sharma as father failed to prove the mother is unfit for the custody of the child.
12. This case took into consideration the gentle case of custody of a child who is below of five years of age. This case was considered to be landmark because it exclusively specified the right if the mother to have custody of a child below five years of age provided that mother is not unfit for the same.
13. The burden of proof for proving that mother would not be able to take care or provide a suitable environment would lie before the father since the child is under the age of five years and mother is the best suited custodian for that child.
14. This was a landmark judgment since it provided with Guardianship, custody and visitation. The SC stated that guardian is a person who has the general care and control of the person and estate of his ward: custody refers to the care and control of the thing or a person: visitation refers to the non-custodial parent or grandparents’ right to spend time with the child.