The Supreme Court on Wednesday (August 28) disapproved of an order of the Madhya Pradesh High Court granting custody of a 2.5-year-old child to her father on the sole ground that father is the natural guardian, calling it a “completely erroneous approach”.
“Our judicial conscience is shocked by the fact that High Court treated the child as a transferable, movable property. That’s the problem. High Court says there is simple formula – father is a natural guardian, child should go back to the father. By that logic, every custody petition, every habeas corpus petition dealing with minor children can be decided in one paragraph if we confirm this view taken by the High Court”, Justice Abhay Oka orally remarked.
A bench of Justice Abhay Oka and Justice Augustine George Masih reiterated that the child’s welfare, and not the legal rights of the parties seeking custody, is the paramount consideration in custody cases.
“A custody court can in a given case refuse to grant custody to the natural parents. It all depends on the welfare of the minor child. It is not axiomatic that the custody court will grant custody only on the basis of legal rights of the parties”, Justice Oka stressed.
The Court made these observations while reserving its judgment in an appeal by the maternal aunt of the child against the HC order granting custody to the father.
The child has been with maternal aunt since the father’s arrest for alleged dowry death of the child’s mother. The child’s father and paternal grandparents filed a habeas corpus petition in the Madhya Pradesh HC seeking custody of the child after being released on bail.
The HC said that the child was in “illegal custody” of the maternal aunt and should be returned to her biological father and paternal grandparents. The HC ultimately directed the maternal aunt to hand over custody to the father within 15 days, as the father is the natural guardian. This order was challenged by the maternal aunt in the present appeal before the Supreme Court.
During the hearing, Justice Oka voiced his disapproval of the HC’s rationale that the father being the natural guardian should get the custody. The bench questioned how the custody of the child with her aunt could be disturbed, considering she has been with the aunt for two years.
“For two years the child is with the maternal aunt, we can’t disturb custody like this. It will be unjust to the child”, the bench remarked.
Justice Oka further stressed that the welfare of the child should be of paramount importance in custody disputes.
The bench suggested an interim arrangement wherein the father would be allowed to meet his daughter once every fortnight at the office of the Legal Services Authority, in the presence of the Secretary.
Additionally, the Court proposed that a child psychologist be involved to help the child gradually become close with her father and paternal grandparents. The bench indicated that if the father subsequently files a custody petition, the family court could then consider increasing the father’s access to the child based on her response to these meetings.
However, the counsel for the father resisted this, as there is already a HC order in the favour of the father. Thereafter, the Supreme Court reserved judgment in the case.
Case no. – Crl.A. No. 3821/2023
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