Appeal in Supreme Court by Grandmother against the judgment and order passed by the High Court of Indore, the High Court has directed that the custody of the child be handed over to the respondent/father.
The respondent (father), had got married to the appellant's daughter. Appellant's daughter went to Indore to the appellant's residence for delivery of the child nd gave birth to a female child on 20.05.2001, but she did not survive to see the new born baby. As the child was born premature, she was kept in incubator in the hospital for nearly 45 days. After discharge from the hospital, the infant was brought to the residence of the appellant, and she was named Anagh.
The Respondent (father) filed an application under Guardian and Wards Act before the Family Court, inter-alia asserting that being the father of the child Anagh, he is her natural guardian and therefore, entitled to the custody of the child.
The Family Court, Indore in its order dated 18.3.2004 given priority to the welfare of minor child, and gave custody of minor child - Anagh to the respondent father. Aggrieved by the said order, the appellant (grandmother) had carried the matter to the High Court.
the High Court in its judgment has held, that there are no compelling reasons on the basis whereof the custody of the child should be denied to her father/respondent. Respondent has been making efforts right from the infancy of the child for guardianship of the child which was strongly resisted by his mother-in-law. For better upbringing and welfare of the child, her custody should be entrusted to her father. Aggrieved by the said judgment, appellant (Grandmother) is appealed the matter in Supreme Court
Under the Guardian and Wards Act, 1890, the father is the guardian of the minor child until he is found unfit to be the guardian of the minor female child. In deciding such questions, the welfare of the minor child is the paramount consideration and such a question cannot be decided merely based upon the rights of the parties under the law
This Court considering the welfare of the child also stated that, the children are not mere chattels: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children have, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society."
Court has observed that whenever a question arises before Court pertaining to the custody of the minor child, the matter is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child.
Reference of Madras High Court has observed, that, if a minor has for many years from a tender age lived with grandparents or near relatives and has been well cared for and during that time the minor's father has shown a lack of interest in the minor, these are circumstances of very great importance, having bearing upon the question of the interest and welfare of the minor and on the banafide of the petition by the father for their custody.
The welfare of a child is not to be measured by money only, or by physical comfort only. The word welfare must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.
Ordinarily, under the Guardian and Wards Act, the natural guardians of the child have the right to the custody of the child, but that right is not absolute and the Courts are expected to give paramount consideration to the welfare of the minor child. The child has remained with the appellant/grandmother for a long time and is growing up well in an atmosphere which is conducive to its growth. It may not be proper at this stage for diverting the environment to which the child is used to. Therefore, it is desirable to allow the appellant to retain the custody of the child.
The court has mentioned that In spite of notices issued to father, he has not appeared before the Court personally or through his counsel which shows his lack of concern in the matter. Also he has got married for the second time and has a child too.
SC allowed the appeal and set aside the impugned order. Also permitted the appellant (grandmother) to have the custody of the child till she attains the age of majority.