Bhubaneswar: Even as the suicide by Bangalore-based techie Atul Subash has drawn the national glare on the blatant misuse of Section 498A by estranged wives against husbands, the family of the deceased techie has lost another legal battle to their separated daughter-in-law Nikita Singhania.

The battle for custody of the 4-year old grand-son reached the corridors of the Apex Court, when mother of deceased Atul Subash, Anju Devi, moved the SC pleading custody of their grandson.

However, a 2-Bench judge comprising of Justice BV Nagarathna and SC Sharma declined the plea and granted the custodial right to the mother Nikita Singhania.

Before granting the custodial right, the bench had a brief interaction with the child via video link. While delivering the verdict, the bench observed that looking at the best interest and welfare of the minor child, when he (the child) had spent minimum time with his grandparents, it will be right that the custody of child remain with his mother (Nikita Singhania).  

Justice Nagrathna observed, “The child is practically a stranger to the petitioner (grandmother Anju Devi).”

HOW CUSTODIAL RIGHT OF CHILD DECIDED – SC GUIDELINES

• As per Section 6 of the Hindu Minority and Guardianship Act 1956:
•  If the age of child is below 5-years, then ordinarily the custody lies with the mother.
• In the Atul Subash case, the age of Child is 4-year.
• SC guidelines put child’s welfare first, above all.
• It had even directed that welfare of child overrides personal laws when custodial right is to be decided.

Supreme Court in 2012 Gayatri Bajaj Vs Jiten Bhalla case said the following.

Custody of minor children either under the provisions of The Guardians and Wards Act 1890 or Hindu Minority and Guardianship Act 1956 is required to be made by the Court by

• Treating the interest and welfare of the minor to be of paramount importance. 
• It is not the better right of the either parent that would require adjudication while deciding their entitlement to custody. 
• The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child are some of the relevant factors that have to be taken into account by the Court while deciding the issue of custody of a minor.
•  What must be emphasized here is that while all other factors are undoubtedly relevant, it is the desire, interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination required to be made by the Court.
• In the case of Shazia Aman Khan Vs State of Odisha, the SC gave primacy to wish of the minor child in order to decide custodial right. 

How the ABILITY is determined?

1. Healthy stay and stable environment at parents home
2. Strengt of parent-child relationship
3. Child’s willingness to stay with the parents
4. Physical, emotional and mental well being of the child.
5. If verbal, mental abuse possible then cuctody denied
6. Ethical upbringing and safety of child
7. Ability of parent to impart good education
8. Financial stature of custodial parent

ATUL SUBASH CASE

In the present case, the estranged wife stood on strong legal grounds from day 1, as she has not only walked away with the child since birth, but also the child had neither met the grandparents nor were allowed to meet them.

 Therfore, Justice Nagrathna, while granting the custodial right to the estranged daughter-in-law, said, the child is totally stranger to petitioner (grandmother).

Moreover, as Anju Devi had pleaded in the petition that her 4-year grandson has been put in a boarding school, and the child requires parental care, Nikita Singhania told the Supreme Court Bench that as she had to oblige with the bail conditions set by Karnataka court, henceforth, son will live with her in Bangalore!

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