The Supreme Court has held it was not bound either by statutes, or by strict rules of evidence, or procedure or precedent in deciding the issue of custody since the paramount consideration would be the welfare and well-being of the child.
A bench of Justices U U Lalit, Indu Malhotra and Krishna Murari directed handing over custody of a 12-year-old girl to her father, rejecting her mother's contention that the minor daughter was being molested by the father and it would be unsafe for the child to be in his company.
The top court, for its part, preferred to interact with both the parents as well as the child to arrive at the conclusion.
“We individually interviewed both the parents and the child. Having interacted with the child, we are of the view that the minor girl is certainly capable of forming an intelligent preference regarding her custody,” the bench said in a recent judgement.
The court found the girl who was over 12 years of age, and was studying in Class VII “to be articulate, and unequivocal about her definite desire to reside with her father”.
She stated that she received love and affection from her father, who was taking care of her food, education, and would assist her in her school projects and activities.
The bench relied upon its 2008 judgement in case of 'Nil Ratan Kundu and Anr vs Abhijit Kundu, which stated that while exercising 'parens patriae' jurisdiction, the court was required to give due weight to the ordinary comfort of the child, contentment, intellectual, moral and physical development, health, education and general maintenance, and the favourable surroundings.
The top court confirmed the order passed by the Delhi court, granting custody of the girl to the father and visitation rights to the mother. The HC had dismissed the mother's appeal, relying upon reports of three counsellors, indicating that the child was comfortable in the company of the father, and wanted to live with him. The HC observed that the video clippings submitted by the mother did not prima facie support her allegation of sexual abuse by the father.