New Delhi: If the parents are divorced, the welfare of their minor child should be the paramount consideration in entrusting its custody to either of them, the Supreme Court has held.
“It is trite that while determining the question to which parent the care and control of a child should be committed, the first and paramount consideration is the welfare and interest of the child, and not the rights of the parents under a statute,” said a Bench consisting of Justices C.K. Thakker and D.K. Jain.
“Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor. It is here that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.”
The Bench noted: “Children are not mere chattels; nor are they mere playthings for their parents. The court, in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their parents over them.”
Mother’s appeal dismissed
In the instant case, Mausami Moitra, who married Jayant Ganguli in April 1996, left him soon after the birth of their son Satyajeet. Ganguli was looking after the minor son.
After divorce, a family court in Allahabad directed him to entrust the custody of the child to the mother. But the Allahabad High Court reversed the order and directed that the son’s custody be with the father.
Dismissing Mausami’s appeal, the Supreme Court said: “Having interviewed Satyajeet in our chambers for some time, we find it difficult to accept the stand of the appellant that the father does not have sufficient time or resources to look after the welfare of the child.
“We are convinced that the dislocation of Satyajeet at this stage from Allahabad, where he has grown up in sufficiently good surroundings, would not only impede his schooling but may also cause him emotional strain and depression. We are convinced that child’s interest and welfare will be best served if he continues to be in the custody of the father.”
Judgment can be found here http://mynation.net/docs/3500-2008/