A woman cannot be denied custody of her child, pending adjudication of a divorce case merely because she was employed and hence not in a position to devote adequate time, the Madras High Court has ruled.

Dismissing a civil revision petition filed in the Madurai Bench of the court, Justice Aruna Jagadeesan also said that preferably a mother should be the guardian of a minor child than the father until final disposal of the divorce proceedings.

“Insofar as interim custody is concerned… welfare of minor child will be of paramount consideration. There cannot be any second opinion that it is the mother who would have the interest of the minor most at the tender years,” she said.

The judge went on to state: “This is because the feelings at the tender age of a child need a gentle, delicate and kind care by a woman. It is only in exceptional cases, the mother may not have interest of her child most dear to her.”

The father of a seven-year-old girl child had filed the present petition against an order passed by the Kanyakumari district court handing over the custody of the child to the mother. The petitioner was permitted to visit the child only on Sundays.

He claimed before the Bench that the mother would not be able to devote time for the child as she was an employed woman. He also pointed out that his daughter preferred to live with him and not her mother.

Further, alleging that his wife indulged in adultery, he said that the lower court had failed to give paramount consideration to the welfare of the minor child because she might be affected by her mother who “ignored the value of family life.”

Rejecting the petitioner’s contentions, Ms. Justice Jagadeesan said that it would be unsafe for the child to live with the father due to his attitude of accusing his wife of having adulterous contacts with whomsoever she comes in contact with.

“Matrimonial dispute between the parents would certainly impair the mind of the child, especially when she is brought up with partisan attitude influencing her mind by saying that her mother’s character is questionable,” the judge said.

At present, the child might not be inclined to live with her mother due to a short separation. “But natural bond of love between the mother and child is such that this court has no doubt that within a short time, they would develop intimacy and mutual love,” the judgment read.

It also stated: “Merely because the mother is employed, she cannot be deprived of the custody of the minor child, especially when there is nothing to indicate that she was not taking care of her child when they all lived together.”

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