It is hackneyed to say that the welfare of a child should be the foremost consideration while determining the issue as to which parent should have his/her custody.
Observing this, the Telangana High Court delivered a verdict permitting continuation of the interim custody of a child with his father. A Division Bench comprising Justice Raghvendra Singh Chauhan and Justice T. Amarnath Goud set aside the trial court’s order dismissing the petition of the child’s father to allow the child to be in his custody.
Khaja Raheemuddin, a private employee, had filed a petition in the family court seeking a direction to permit him to be the guardian of his 23-month-old son after developing differences with his wife. The trial court had dismissed his petition citing Allahabad HC verdict and Section 352 of Mohammedan Law.
While the Allahabad HC verdict said the father cannot compensate for the loss that the child would suffer from being deprived of the motherly affection, Section 352 of the Mohammedan Law provided that the mother was entitled to the custody of her male child until he completes seven years of age. Challenging the trial court order, Mr. Raheemuddin moved the High Court by filing a Civil Miscellaneous Appeal. Delivering the verdict, the Bench said the principles of law over the custody of a minor child are well-settled. “In fact, no statute on the subject can ignore, or obliterate the vital factor of the welfare of the minor,” the verdict said.
The Bench, however, noted that the issue of the minor’s welfare should be considered vis-a-vis the background, relevant facts and circumstances of the case. All the cases cannot be treated similarly. Each case has to be decided on its own facts, the judges observed.
The Bench noted that the factors which decided the earlier cases cannot be binding precedents over the factual aspects of the cases on hand. In each case, the court has to primarily see the welfare of the child to decide whether to give his/her custody to the father or the mother.
Better financial resources of either the mother or the father or how much they love the child are some of the relevant considerations. “It is here that a heavy duty is cast on the court to exercise its judicial discretion,” the verdict said.
