Guardians and Wards Act, 1890-Section 25
Jasti Chelameswar and A.K. Sikri, JJ.
Who should be given custody of the child?
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• The Appellant and the Respondent were married to each other. There wasfight between the Appellant and the Respondent forcing the Respondent toleave the matrimonial house and the custody battle started from that dayitself, when the child was not even two years of age.
• While leaving thematrimonial house, though the Respondent wanted to take the child along,the Appellant did not allow her to do so. The Respondent filed petition under Section 25 read with Sections 10 and 12 of the Guardians and WardsAct, 1980 (Act) for the custody and appointment of the Guardian of theminor daughter before the Principal Judge of the Family Court.
· She statedthat she had been in continuous possession, care and protection of the child since her birth and the Appellant had no love and affection for the child. The Principal Judge, Family Court was of the opinion that the Appellant was fit person to retain the custody of the child.
· The Respondent challenged the order of the Family Court by filing the appeal in the High Court. The High Court found it appropriate to handover the custody of the child to the Respondent/mother as she was better suited to take care of the child and this course of action is in the best interest of the child.
· The High Court, in the process, found fault with the approach adopted by the Family Judge, which had mainly relied upon the incident to deny the custody of the child to the Respondent on the ground that she had herself abandoned the child on that day. The High Court granted visitation rights to the Appellant, father of the child.
• The Appellant herein contested that the Respondent was not in aposition to look after the child as there is nobody to look after her when theRespondent goes for work
• Further, it is theAppellant who had provided all necessary expenses for the maintenance of the child,and even the Respondent.
• He even Accused the Respondent for invariably gettingdrunk on their visits to Army Officers Mess in the parties.
• Respondent wanted totake the child along, the Appellant did not allow her to do so. After making certainpeaceful efforts in this behalf, the Respondent filed under Section 25 read with Sections 10 and 12 of the Guardians and Wards Act, 1980(hereinafter referred to as the 'Act') on for the custody andappointment of the Guardian of the minor daughter before theFamily Court at Delhi at Dwarka
• She stated in thispetition that she had been in continuous possession, care and protection of the childsince her birth and the Appellant had no love and affection for the child.
• In his absence, when he is away for duty, his Orderly looks after the girl child. She alsoalleged that the Appellant leaves for his office at 8.30 a.m. and returns back late inthe evening and, therefore, he is not in a position to look after the basic needs of thechild.
• On the other hand, the Respondent had been devoting all her time to the child. after coming from the school and during her duties in the school, the child is beinglooked after by her parents who had been frequently visiting the matrimonial house.
• She pleaded that for the mental well-being and proper upbringing of the child, hercustody should be given to the Respondent, being her natural mother and she be alsoappointed as her guardian.
Considerations by the Court:
· The Principal Counselor attached to the Family Court, after interaction with the child, submitted her report stating that the child was more interested in living with her father as she did not want to change her present living environment.
· This right of the child is also based on individual dignity. The 'welfare' principle is the public interest that stand served with the optimal growth of the children. It is well recognised that children are the supreme asset of the nation. Rightful place of the child in the sizeable fabric has been recognised in many international covenants, which are adopted in this country as well.
· The continuous company of the mother with child, for some time, was absolutely essential. If the child was admitted in the same school where her mother was teaching, not only the child would be under full care and protection of the mother, she would also be in a position to get better education and better guidance of a mother who herself was a teacher. It was a fit case where Respondent deserved a chance to have the custody of child for the time being, i.e., at least for one year, and not merely visitation rights
Since the factors in favour of Respondent are weightier than those in favour of the Appellant which have been noted above. The custody was given to the Respondent/ Mother. Since the mother was a school teacher, the Court ordered to get the child admitted in the same school for better care. The matter was listed for the next year for further directions wherein the Court would assess as to how the arrangement devised above has worked out.