In the case of Mausami Moitra Ganguli v. Jayant Ganguli, 2008, a Bench of the Supreme Court comprising Justices C K Thakker and D K Jain held that the child’s welfare is the primary factor in deciding in whose custody the child should be placed.
The question in the case was whether the father or the mother should have the custody of an almost ten year old male child. The child’s parents got married on April 18, 1996. On May 28, 1998, a boy, named Satyajeet was born from the wedlock.
However, within a short time, the relationship between the spouses came under strain. The wife, who was employed as a teacher, felt that her husband had misrepresented his occupational status to her, was addicted to alcohol and smoking, had contacts with anti-social elements and had physically abused her.
After moving out of her marital home leaving her son behind, she filed a suit for divorce against respondent which was decreed ex-parte on September 12, 2002. Since no appeal was preferred by the respondent against the said decree, it attained finality.
She then moved a petition on April 5, 2003 under Sections 10 and 25 of the Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and Guardianship Act, 1956 before the Family Court, Allahabad seeking a declaration in her favour to be the lawful guardian of her minor son, Satyajeet and a direction to the respondent to hand over the custody of the child to her.
The application was hotly contested by her ex-husband and the matter ultimately reached the Supreme Court. In its judgment the Court discussed the principles related to deciding which parent should be granted custody of a child, inter alia, saying:
“The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. Indubitably the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In fact, no statute, on the subject, can ignore, eschew or obliterate the vital factor of the welfare of the minor.
The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the Court has to see primarily to the welfare of the child in determining the question of his or her custody. 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 for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.
In Rosy Jacob Vs. Jacob A. Chakramakkal, (1973) 1 SCC 840, a three-Judge Bench of the Supreme Court in a rather curt language had observed that the children are not mere chattels; nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, 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 and the guardian 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 respective parents over them.
In Halsbury’s Laws of England (Fourth Edition, Vol.13), the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms:
’809. Principles as to custody and upbringing of minors. Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other.’
The stability and security of the child is also an essential ingredient for a full development of child’s talent and personality.”
In this case although the Supreme Court decided that the father should have exclusive custody of the child, it said that visitation rights to the mother deserve to be maintained.
(This is an edited extract of the judgment.)