Child's welfare priority while deciding custody rights: SC

The Supreme Court has held that the welfare of a child and not the right of the parents is of utmost importance in deciding the custody battle between sparring spouses.

In a significant decision, a bench comprising justices P Sathasivam and P Chelameswar said that the courts deciding the custody battle should give predominance to the welfare of the child instead of relying upon any other factor.

“In a matter relating to the custody of children the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Even the statues, namely, the Guardianship and Wards Act, 1890, and Hindu Minority and Guardianship Act, 1956, make it clear that the welfare of the child is a predominant consideration.

“In a matter of this nature, particularly, when father and mother fighting their case without reference to the welfare of the child, a heavy duty is cast upon the Court to exercise its discretion judiciously bearing in mind the welfare of the child as paramount consideration,” the bench said.

The apex court gave the ruling recently while retaining the custody of two girls (aged 17 years and 11 years) with their father. It took into considerations several factors, including the fact that both girls have been living with their father since their birth.

“In the relevant facts and circumstances of the case, we are convinced that the interest and welfare of the children will be best served if they continue to be in the custody of the father. In our opinion, at present, it is not desirable to disturb the custody with the father,” the bench said.

However, the court provided visitation rights to the mother and directed the father to “cooperate and persuade” their daughters to make overnight stay with their mother and spend time with her once a fortnight.

The bench held elaborate interaction with the children in the chamber before arriving at its decision.

“Both of them were very clear and firm that they want to continue to live with their father and they do not want to go with their mother,” it noted