The Supreme Court expressed strong disapproval of the Allahabad High Court’s decision in a custody battle involving a minor. Describing the ruling as a “mockery of justice,” the Court criticized the High Court for failing to prioritize the child’s welfare. The Supreme Court emphasized the importance of safeguarding the best interests of the minor in such disputes. This decision highlights the Court’s commitment to ensuring fair and just custody rulings.
New Delhi: The Supreme Court on Friday criticized the Allahabad High Court’s handling of a matrimonial case involving the custody of a six-year-old, describing it as a “mockery of justice.”
Justices Surya Kant and Ujjal Bhuyan expressed their discontent after reviewing the case records, stating,
“If we say anything harsh, then Bar members will say that we are demoralising our high courts. See, what mockery of justice the high court has done.”
Emphasizing that the handling of the habeas corpus petition was profoundly unfair. Justice Surya Kant commented,
“The less we speak is better as it shows the state of the judicial system,”
The bench noted that the mother had been expelled from her matrimonial home, with the child remaining with her husband. While a single judge had ruled in her favor, the division bench later stayed this decision upon the father’s appeal in 2019. Five years later, the high court acknowledged that its earlier stay was erroneous.
The bench instructed the district judge of Bulandshahr to conduct an inquiry and report back on what would serve the best interests and welfare of the child. The father’s counsel argued that the mother’s desire to study in the US had caused discord between them.
Justice Surya Kant remarked that the mother’s pursuit of higher education in the US was intended for the child’s better future but led to her being ousted from her home. The high court previously maintained that the child’s custody by the father was not illegal and that the mother should seek recourse under the Guardians and Wards Act of 1890.
On November 5, the division bench acknowledged that the single judge’s order for an inquiry was justified. It noted that since the original ruling on October 1, 2019, more than five years had elapsed, and the child, now nearly 12 years old, was capable of providing testimony regarding his living situation. The bench reiterated the expectation for the district judge to expedite the necessary actions in line with the October 1, 2019, order.
In India, the custody of a minor is governed by various legal provisions that prioritize the child’s welfare, best interests, and rights. These provisions are found under the Hindu Minority and Guardianship Act, 1956, the Guardian and Wards Act, 1890, and the Indian Divorce Act, 1869, among others.
1. The Hindu Minority and Guardianship Act, 1956
- Custody of Hindu Minors: This Act applies to minors who are Hindus. It gives parents the primary right to be the guardians of their children.
- Best Interests of the Child: The welfare of the child is the paramount consideration when determining custody. The Act allows a mother to be the guardian of a child under the age of 5, but beyond that, the father’s right is usually recognized.
- Custody after Divorce: In case of divorce, custody decisions are made with a focus on the child’s welfare, considering factors such as emotional well-being and safety.
2. Guardian and Wards Act, 1890
- This Act applies to minors of all religions and provides for the appointment of a guardian by the court.
- The court’s paramount consideration is the welfare of the minor. The parent who has the child’s welfare in mind is preferred.
- Procedure: Either parent or a third party can apply to the court for the custody of the child. The court considers factors like the child’s age, sex, and emotional bond with each parent.
4. Special Provisions for Child Custody
- The Juvenile Justice (Care and Protection of Children) Act, 2015: This law is applicable when a child is in need of care and protection, providing guidelines for child custody in cases of abuse or neglect.
- The Protection of Children from Sexual Offences (POCSO) Act, 2012: This Act ensures that the custody and guardianship decisions are made with the child’s safety in mind, especially in cases involving sexual offenses.
Key Considerations in Custody Cases
- Age of the Child: In general, younger children are often awarded to the mother, but this can vary depending on the circumstances and child’s needs.
- Parental Fitness: The court evaluates the fitness of both parents, including their ability to provide emotionally and financially for the child.
- Child’s Preference: If the child is old enough (usually above 9 or 10 years), the court may consider the child’s preference for living with one parent.
Court’s Role:
- Family Courts: In family law matters, including child custody, the Family Courts have the jurisdiction to resolve disputes.
- Best Interest of the Child: The court takes the child’s physical, emotional, and educational needs into account, giving paramount importance to the child’s well-being.
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