SC Reaffirms That Welfare Of Child Is Paramount Consideration For Custody Of Children [Read Judgment]

The Supreme Court invoked the well settled principle that claims of custody of children should be determined only with the prime consideration of their welfare, in order to settle a long-drawn custody battle.

The appellant before the Apex Court was the wife, who was not favoured as the custodian of two children by the High Court. The wife had left the husband after fifteen years of matrimony, on the ground of cruelty and harassment.  Her version that she had been putting up with the harassment and agony for sake of her children , and also due to her financial dependency, and finally when it became unbearable she took the  decision to leave.  She also moved a domestic violence case, and filed application for custody of children.

The Courts below concurrently held that the wife was entitled to the custody. However, the High Court acting on the appeal filed by the husband, gave the custody to him, setting aside the orders of Courts below.  That the wife had violated some interim orders of the Court below for giving weekend custody of children to husband weighed a lot with the High Court. Also the fact that the husband had voluntarily given the custody of the elder child to the wife, even without any orders from the Court, during the pendency of her application, additionally weighed with the Court. However, the wife’s contention was that such voluntary handing over of custody was not due to any humanitarian considerations, but due to the fact that the elder child was doing badly in Class IX and that he could have done well in Class X only under her guidance and tuition.

The Supreme Court disagreed with the findings and conclusions of the High Court. The Court took note of the fact that the husband had got both the children admitted in boarding schools, and that they had been faring poorly academically. The Court also took note of the fact that the children had been performing well in studies after they were given to the wife. An inference was drawn that the husband was not able to devote much attention to the children due to his business commitments. The Court also interacted with the children, who were by the time aged 17 and 13.  They did not express any ill-will against the father; nevertheless, when asked to choose a particular parent, they clearly preferred the mother.  The contention of the wife that the voluntary giving of custody of the elder child by the husband to ensure his good academic performance was accepted by the Court. It was observed as follows:

 it was incumbent upon the High Court to find out the welfare of the children as on that time when it was passing the order. Apart from discussing the ‘welfare principle’, the High Court has not done any exercise in weighing the pros and cons for determining as to which of the two alternatives, namely, giving custody to the appellant or to the respondent, is better and more feasible.