Kerala HC Rejects ‘Estranged’ Husbands’ Plea To Issue ‘Scientific Guidelines’ To Family Courts In Child-Custody Matters [Read Judgment]

Exercise of such a discretionary power by a court cannot be curtailed by issuing any guidelines, as is sought by the petitioners, the bench said.

The High Court of Kerala recently rejected a plea of ‘estranged’ husbands to lay down scientific guidelines to family courts for an objective assessment of the welfare of the child, while deciding child-custody petitions.

Ten husbands who are fighting cases against their wives in the family courts, on the issue of custody of children, had approached the high court, by filing a public interest litigation, complaining that family courts’ orders in child custody issues, lack objective assessment based on any scientific criteria. They contended that orders in custody petitions are passed purely on the subjective satisfaction of the judges and the interest of the child ‘quite often becomes a casualty’.

The petitioners also urged the high court to incorporate guidelines in the Book titled ‘Child Access & Visitation Guidelines' by the Child Rights Foundation, in the Rules framed by this court in the exercise of Article 227 of the Constitution of India and Section 50 of the Guardians and Wards Act.

According to them, this study suggests that the subjective satisfaction of the adjudicative machinery is replaced by an objective assessment with scientific criteria to determine the best interest of the child in matters involving the custody of the children, visitorial right, guardianship etc, in the disputes pending before the family courts and other courts.

It is pertinent to note that the Bombay High Court and the high courts of Himachal Pradesh and Madhya Pradesh, have circulated these Child Access and Custody Guidelines in the respective High Courts and District and Family Courts in the respective states.

However, the bench of Chief Justice Antony Dominic and Justice Dama Seshadri Naidu dismissed their plea observing that exercise of such a discretionary power by a court cannot be curtailed by issuing any guidelines. But the bench added: “If at all the legislature is satisfied that this exercise of power has to be regulated by any statutory yardstick, it is for the legislature to step in and enact any appropriate law as it may be competent to do so.”

Summing up the law to be applied in such matters, the bench observed: “Where custody of a minor child becomes the subject matter of the dispute between the warring parents, the Court is required to decide the issue keeping the welfare of the child in the forefront. It has also been held by the Apex Court on several occasions that in disputes of such nature, the decision has to be taken by the Court not going entirely by the legal rights of the parties, but on the aforesaid criteria.”