[Custody] Parents' Demands Can't Be Given Importance If Child Is Grown Up & Able To Take Rational Decision In Personal Matters: Kerala High Court

The Kerala High Court on Wednesday observed that when a child is grown up and is capable of making rational decisions on his/her own, the court must not give too much importance to the demands of the parents' battling the custody of the child.  

A division bench of comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar was hearing a challenge against the order of a family court that had denied custody to the father. The court in this case had personally interacted with the child to ascertain his desire. The child had expressed his desire to stay with his mother.

"The welfare of the child has to be given predominance. Since he is grown up and able to take rational decision in his personal matters, too much importance cannot be given to the parents' demands." 

The grievance of the petitioner father was that respondent was not permitting him to visit the child. He had filed for custody of the child before the family court, which was denied. Challenging the order of the family court, he approached the high court. His plea was opposed by the counsel for the respondent mother on the ground that overnight custody of the child cannot be given to the petitioner father as the child had some health concerns relating to obesity and that this severely affected his mobility.

The court observed that in custody battles, it is the welfare of the child that is of paramount importance. Courts should take decisions on child custody solely based on what is in the best interest of the child. In this regard, the court had directed the Secretary of the Taluk Legal Services Committee at Chavakkad to submit a report after verifying the physical condition of the child with regard to the limitations for movement. The report submitted pointed out that the child has obesity and related issues and could not move around freely. The child often requires a wheelchair to move around. Special arrangements have been made at his school to suit his needs. The mother needs to visit the school everyday to noon to help him in his daily tasks. the report stated. In light of this report, the court held:

 Considering the physical condition of the child and the special needs and conveniences required for his day-to-day affairs, we hold that giving overnight custody of the child to the petitioner is not conducive and in the interest of the child."

The petitioner father had challenged the limited visitation rights that had been granted to him by the family court as he was only allowed to visit the child from 10.00 a.m. to 12.00 noon every second Saturday. 

The court in this regard reiterated the settled position of law that a child has a human right to receive the love, affection and company of both parents and that only in extreme circumstances can one parent be denied contact with the child. The court observed that it is “essential that the child maintains an emotional bondage and warmth with both parents which helps his proper upbringing”.

The court reiterated the decision of the Supreme Court in Yashita Sahu v. State of Rajasthan, where it was observed that the child is often the victim of custody battles:

“In this fight of egos and increasing acrimonious battles and litigations between two spouses, more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to custody of the child. The court must therefore be very wary of what is said by each of the spouse” the Supreme Court had remarked in the said case.

In light of the above, the court while denying custody of the child to the father, modified the condition set by the family court and allowed the petitioner father to have interactions with the child from 10.00 a.m. till 12.00 noon on every second and fourth Saturdays.

Case Title: XXX v XXX

Citation: 2023 LiveLaw (Ker) 83 

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