Child’s comfort level, not parent’s degree, to decide custody right, says Calcutta HC

KOLKATA: The child of a separated couple who has been living with his father for five years cannot be “planted somewhere else” even if the father’s educational qualification is less than the mother’s, Calcutta High Court held on Tuesday.

The mother, who was recently awarded custody of the child by a trial court, has a master’s degree in music. She runs a music school and is also a private tutor. The father, whose custody claim over the 8-year-old has been upheld by the high court, is a matriculate and earns a living selling fish.

The child, who has been living with his father since the couple separated five years ago, had told the trial court judge that he wanted to be with both parents.

Since the couple filed for the restitution of conjugal rights several times while the custody battle was on, the HC division bench of justices Sabyasachi Bhattacharyya and Supratim Bhattacharya observed on Tues-day: “It transpires that all is still not lost and there is ample scope of the parties reconciling their matrimonial disputes, as well as a chance of the parties staying together as a couple by shedding their personal differences, which will be of utmost benefit to the child in the final count.”

The bench referred the couple for mediation, to be supervised by Calcutta High Court Mediation Committee. The panel was requested to seek a psychologist’s help.

The trial court in a recent order had noted that the father earned more than the mother but gave the kid’s custody to the mother because she was more educated. The judge had observed that the child’s upbringing would be affected if he were to be deprived of mother’s love.

Scar on child’s mind over 5 years, says court in custody case
Acting on an appeal by the father against the trial court order, the division bench observed on Tuesday: “The finding of the trial judge is that any detachment of the minor from his mother may cause a scratch in the mind of the minor, who is eight years old. That scratch was caused five years ago; from age three to eight, he has been residing with his father... He has been living with his father for five years; now we cannot pick him up and plant him somewhere else.”

The bench also observed: “The trial judge was swayed more by... personal inclinations and views than the facts of the case.”

The couple was separated in 2021, when the child was just three. The man alleged his wife had left to live at her paternal home, while the woman claimed she had been driven out of the house by her husband.

The division bench said no evidence was provided to establish that the child’s education suffered during the five years he stayed with his father.
The mother has been granted visitation rights by the HC.