IMPORTANT JUDGMENTS OF THE SUPREME COURT AND KARNATAKA HIGH COURT ON CHILD CUSTODY MATTERS
IMPORTANT JUDGMENTS OF THE SUPREME COURT AND KARNATAKA HIGH COURT ON CHILD CUSTODY MATTERS
Following are certain leading judgments of the Supreme Court of India and The High Court of Karnataka on matters relating to custody of a child.
1. Rosy Jacob v/s Jacob A Chakaramakkal (1973) 1 SCC 840
The Honourable Supreme Court of India held that children are neither mere chattels nor play things in the hands of the parents. In the modern changed social conditions, absolute right of parents over the destinies and lives of their children has yielded to the consideration of their welfare as human beings, so that they may grow up in a balanced manner to be useful members of society.
In matters of custody of children, factor that the father loves his children and is not otherwise undesirable cannot alone give him an edge over the mother who is equally affectionate towards her children. Courts have to distinguish between right of guardianship and right of custody.
2. Mausami Moitra Ganguly v/s Jayant Ganguly AIR 2001 SC 2179
The Honourable Supreme Court of India held that better financial resources of one parent, his or her love for the child may be one of the relevant considerations, but cannot be the sole determining factor for custody.
The Court further stated that stability and consistency in the affairs and routine of the children is also an important consideration.
In this case, custody was granted to the husband.
3. Nil Ratan Kundu and Anr v/s Abhijit Kundu 2008 AIR SCW 5769=(2008)9 SCC 413
The Supreme Court laid down that while dealing with custody, Courts are neither bound by statutes nor by strict rules of evidence and procedure nor by precedent. Paramount considerations are welfare and well being of the child. Strict parameters governing an interim injunction do not have full play in matters of custody.
4. Gaurav Nagpal v/s Sumetha Nagpal (2009) I SCC 42
In deciding matters of custody, the Supreme Court held that, Courts need to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings. Over and above physical comforts the moral and ethical values also have to be noted. The welfare and interest of the child is paramount in matters of custody. The principles of law in this regard are well settled. The welfare of the child is superior to the rights of the parent under a statute.
The Court has not only to look into the issue on legalistic basis, in such matters human angles are relevant for deciding the issues.
Though provisions of special statutes which favour the rights of parents/guardians maybe taken into consideration, Court has to exercise its ‘parens patriae’ jurisdiction.
The Supreme Court further recognised that principles of custody under Section 26 of the Hindu Marriage Act are not different to the principles of custody under the Guardians and Wards Act.
5. Athar Hussain v/s Syed Siraj Ahmed and Ors AIR 2010 SC 1417 (from Karnataka)
In matters of custody, welfare of the children is the sole and single yardstick, by which court shall assess the comparative merits of the parties contesting the custody.
The Court held that question of guardianship can be independent of and distinct from that of custody, in facts and circumstances of each case.
Second marriage of husband, is a factor to be taken into consideration while considering custody of child.
6. S. Anand v/s Smt. Lakshmi ILR 2012 Kar.2334
The Honourable High Court of Karnataka upheld the view of The Supreme Court that that the welfare interest of the child is paramount in matters of custody. The principles of law in this regard are well settled. The welfare of the child is superior to the rights of the parent under a statute.
The Court further held that the question of welfare needs to be considered in the background of relevant facts and circumstances. Each case has to be decided on its own facts. Better financial resources of one parent, his or her love for the child may be one of the relevant considerations, but cannot be the sole determining factor for custody.
Following the ruling of the Supreme Court, the High Court said that Courts need to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings. Over and above physical comforts the moral and ethical values also have to be noted.
In the given case, there was an allegation of immoral life by wife against the husband. The custody was granted to the wife.
Author: Naqsha Biliangady,Advocate, Mento Associates.