Mumbai: A parent suffering from mental illness could not be disqualified from getting custody of a child unless the illness is dangerous to the kid. The observation was made by the sessions court, while refusing to set aside the magistrate's order granting temporary custody of a minor son to the mother.
The court was hearing the appeal filed by the woman's husband, who resides in Patna, against the orders of the metropolitan magistrate court, Borivali, passed on March 29 and April 15. The magistrate had ordered the man to hand over custody of the 16-year-old boy to his mother till May 15.
As he failed to abide by the orders, the magistrate issued a production warrant on April 15 against him and his son. The man then approached the sessions court, claiming that transferring custody without the boy's proper psychological or welfare assessment could cause trauma or instability to him. He also submitted an affidavit in which the teen apparently registered his refusal to go to his mother.
Besides, the man claimed that the mental health of his wife is not good and hence giving the minor's custody to her would not be in his best interest. Raising objection, the woman asserted that the allegation of her unsound mental health is not supported by any medical report or evidence.
She argued that the so-called affidavit by the minor son appears to be fabricated, pointing out that the legal language is not that of a school-goer. She highlighted that due to the geographical distance, she is able to only meet her son during vacation. Hence, denial of interim custody for even a month amounts to grave injustice, the mother said.
The sessions court, while hearing the plea, noted that the magistrate has interacted with the child, considered his best interest and welfare, and directed the parties to undergo mediation before passing the order. While granting temporary custody, the magistrate considered the curriculum course of the child and natural affection of the mother in the right perspective, said the court.
“A parent suffering from mental illness is not, per se, disqualified from custody unless the problem poses danger to the welfare of the child. In the present case, the minor is nearing adulthood and the order is only for temporary custody,” said the judge.
The power of temporary custody is discretionary in nature of the magistrate and unless it manifests illegally, it cannot be interfered in appeal, the court said, while nixing the man's plea.
