Page last updated at 14:35 GMT, Friday, 16 May 2008 15:35 UK

Indian child opts for rich father

By Prachi Pinglay
BBC News, Mumbai

Indian children
In Indian law, custody of under fives is normally awarded to the mother

An 11-year-old Indian child, asked to choose between his parents engaged in a bitter custody battle, has picked his father because he is more affluent.

The child, who cannot be named for legal reasons, told the judges he loved both the parents equally, but wanted to live with his father.

The Mumbai court ruled in favour of the father after hearing the boy.

The court said it was sending the child to stay with the father because it was convinced of the child's maturity.

Under Indian law, the custody of children under the age of five is given to the mother except in exceptional circumstances.

The courts have often taken the view that a child under 10 needs to stay with the mother.

Once a child turns 10, its normal practice for the court to take the wishes of the child into account while deciding on custody.

'Good maturity'

The court said the order was passed after taking the child's wishes into consideration.

"We must note that undoubtedly to some extent [the child] is attracted to the father because of the comfortable lifestyle which he is offering to him," the court said in its order.

"But it would be wrong to say that that is the only reason why he wants to be with his father. There appears to be some bond between the two."

The court said it upheld the boy's wishes and noted that he "appeared to us to be a well brought up, well groomed child. For his age, he showed good amount of maturity.

"We could, however, see how stressed he is because of the discord between his parents. He is obviously torn between the two. He told us that he loves his father and mother equally, but he wants his custody to be given to his father," the judges said.

The boy's parents - affluent Muslims - got married in 1997 and he was born the same year.

Two years later, the couple decided to separate and at the time of divorce, custody was handed over to the mother with the father given visiting rights.

Attractive lifestyle

In 2003, the father appealed based on a clause in Muslim law which says the mother's natural custody over her son ends once he turns seven.

Last month, the judges spoke to the boy and felt that apart from the love and affection, the child was also attracted to a better lifestyle that his father would be able to provide.

Though the child attended a good school and was looked after well by his mother, he preferred to stay with his father.

The court also gave credit to the mother for bringing him up well and for not tutoring him against his father.

"We did not find the mother any less caring or competent to look after the child. No one can take the mother's place in a child's life. But what has really weighed with us is the fact that the child has told us that he wants to stay with his father," the judges said.

The court said the mother can meet the boy at weekends and during holidays and that he cannot be taken out of India without the court's permission.

Legal experts say the mother can appeal against the order in the Supreme Court.

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