Not Legal Rights, Welfare of Child to be Considered in Child Custody Cases


January 16, 2019

In this recent case, the High Court of Karnataka has reiterated that in cases involving dispute over Child Custody, the wishes and welfare of the child is of paramount importance and the Court should give due consideration to the same.

Case name: Mr. Preetam A. Eklaspur v. Smt. Vanishree

The Petition father in the case has assailed Family Court’s order, whereby the Court directed the Petitioner to return the child to the custody of respondent mother.

One of the important facts of the case is that the child whose custody was disputed in the case is 10 years old and as per the Chamber Conciliation Order the child expressed her intention before the Family Court Judge to stay with her father in India.

Bench’s Verdict

The High Court of Karnataka in view of the facts and circumstances of the case and settled law pertaining to child custody matters allowed the petition and made the following observations in the case:

  • That it is well settled that while giving custody of the minor female child, the wishes and welfare of the child is of paramount importance and the Court should give due consideration to the same in view of the provisions of Section 17 of the Guardianship & Wards Act.
  • With reference to the facts of the present case, the Court opined that the female child is aged about 10 years and she is mentally matured to know the differences between the father and mother and who is capable of taking care of her in a better way. The Court before giving custody of minor child to either father or mother must give regard to the minor’s welfare as the first and paramount consideration and may not take into consideration whether from any other point of view the father’s claim in respect of that custody or upbringing is superior to that of the mother, or the mother’s claim is superior to that of the father.
  • That while deciding the question as to the custody of a minor child, a Court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents.
  • Factors to be considered while selecting proper guardian- The Court made an essential observation in the case by stating that in selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the Court is exercising parens patriae jurisdiction and is expected to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings and the Court should also take the wishes of the minor child into consideration.

In view of the aforesaid and primarily owing to the wish expressed by the minor child in the case, the High Court set aside Family Court’s order in the case and opined that the Court must ascertain child’s wishes and a child is not a property or commodity. Such issues should be handled with love, affection, sentiments and applying human touch to the problem.

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