Supreme Court of India
Lekha vs P. Anil Kumar on 21 November, 2006
The appeal is directed against the order of the High Court of Kerala allowing matrimonial appeal for the custody of the child of the respondent by reversing the finding of fact arrived at by the trial Court. The trial Court, after considering the evidence on record and interviewing the child, came to the conclusion that for the welfare of the child the custody should be given to the mother and dismissed the original petition of the respondent-father filed under the Guardians and Wards Act holding that he is not entitled for the custody of the child. On appeal, the High Court reversed the finding of the trial Court and directed to give the custody of the child to the father without interviewing the child. The High Court also permitted the respondent to take the child to Gulf.
Wife files divorce on the ground of cruelty. The respondent (father) filed a petition for restitution of conjugal rights against the appellant and also filed an original petition under the Guardians and Wards Act for the custody of the 11 years old minor son. Allegation by father was that if the child is in the company of the appellant, it would affect the education of the child. The respondent also contended that he is financially better than the appellant and hence the custody of the child be given to him.
In the meantime, the Subordinate Judge passed an ex- parte decree for divorce in favour of the appellant and the petition for restitution of conjugal rights filed by the respondent was dismissed for default.
Against the order of the Family court, the respondent filed an appeal before the High Court of Kerala. The contention of the respondent was that contrary to the deposition made by the appellant before the trial Court that she would not re- marry, immediately after the judgment of the petition filed under the Guardians and Wards Act, she remarried. It is, therefore, contended that the continued custody of the child with the appellant would be detrimental to the interest, progress and welfare of the child.
The High Court, without giving an opportunity to express the willingness of the child, allowed the appeal only on the ground of remarriage of the appellant/mother of the child. The High Court also held that the respondent-father is a businessman in Saudi Arabia and the father is more apt and suitable to protect the interest of the minor child and also in imparting education to the required standard of the child.
We are of the opinion that the remarriage of the mother cannot be taken as a ground for not granting the custody of the child to the mother. The paramount consideration should be given to the welfare of the child. As already noticed, at the interview, the boy has expressed his willingness and desire to live only with his mother and was admitted by him that the mother will provide him good education. The mother is also drawing pension of Rs.6,000/- p.m. and also having land and properties in her name. When the boy says he prefers to live with his mother, we are of the view that it will be beneficial for the boy and his education for a better future. The High Court, in our opinion, erred in allowing the appeal on the ground of remarriage of the appellant without considering the other aspects of the matter. It is a matter of custody of the child and the paramount consideration should be the welfare of the child. It is not in dispute the boy is living with his mother for the last several years and the separation at this stage will affect the mental condition and the education of the child and considering that the child himself attaches importance to his education if the custody is to be given to the father will now affect his academic brilliance and future.
The High Court, in our opinion, ought to have seen that the re-marriage cannot be taken as a ground for giving custody of the child. There is also no finding by the High Court that the remarriage has adversely affected the mental condition of the minor child.
The principles of law in relation to the custody of a minor appear to be well-established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the court has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor.
The High Court committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the Courts to be of relevance in deciding grant of custody of minor children. We are, therefore, inclined to restore the order passed by the Family Court and to give custody of the minor boy to his mother, but as indicated hereinbefore, we do not want the child to grow up without knowing the love and affection of his natural father who too has a right to help in the child's upbringing. We are of the view that although the custody of the minor child is being given to the mother, the child should also get sufficient exposure to his natural father and accordingly we permit the respondent to have custody of the child from the appellant during Onam and other important festivals and during the school vacation. We make it clear that the appellant-mother shall hand over the child to the respondent-father during every mid summer vacation for about a month without adversely affecting the child's education. The appellant should not also prevent the respondent-father from coming to see the child during weekends and the appellant should make necessary arrangements for the respondent to meet his child on such occasions. The appellant should not also prevent the child from receiving any gift that may be given by the respondent- father to the child.
High Court committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the Courts to be of relevance in deciding grant of custody of minor children
remarriage of the mother cannot be taken as a ground for not granting the custody of the child to the mother.
The principles of law in relation to the custody of a minor appear to be well-established. It is well settled that any matter concerning a minor, has to be considered and decided only from the point of view of the welfare and interest of the minor.