The Supreme Court was considering a matter pertaining to the custody of children.
The Supreme Court reiterated that the deep love, care, and sincerity shown by either parent alone cannot be the sole basis for deciding a child’s custody.
The case before the Court involved a dispute over child custody.
The 3-Judge Bench of Justice Vikram Nath, Justice Sanjay Karol and Justice Sandeep Mehta asserted, “There are series of judgments by this Court wherein, it has been authoritatively held that in cases of child custody, the paramount consideration should be the child’s welfare. The utmost sincerity, love and affection showered by either of the parents, by itself, cannot be a ground to decide the custody of a child.”
Factual Background
The appellant and respondent, both well-qualified professionals, were married in 2014 and have three children—a son, a daughter, and a younger son born in 2021. Marital discord arose in 2017, leading to their separation, though there were occasional efforts at reconciliation. During one such attempt in 2021, the appellant conceived their third child. Concerned that the respondent might forcibly take the children from her custody, the appellant approached the Family Court by filing a petition under the Guardians and Wards Act, 1890, seeking permanent custody.
The case is currently pending final adjudication.
The Family Court issued an order restraining the respondent-father from forcibly taking the minor children from the custody of the appellant-mother. Subsequently, the father sought interim custody and visitation rights, which were granted—allowing him to meet the children on the second Saturday of each month within the court premises. Later, on a petition filed by the father, the Kerala High Court granted him interim custody. Challenging this order, the appellant-mother approached the Supreme Court through a special leave petition.
Reasoning
The Bench acknowledged the mother’s serious concerns about the environment in which the daughter was placed during the 15-day interim custody granted to the respondent-father by the High Court. It was brought to the Court’s attention that the father had failed to appoint a nanny as directed by the High Court.
The Bench was of the view that the interim arrangement, as charted out by the High Court in the impugned order, granting 15 days’ alternative custody of both the children to the parents, was neither feasible nor conducive to the well-being, mental and physical, of the children. The younger of the two children being the son aged about three years, had hardly lived with his father, who lives and works in Singapore. “Thus, directing the custody of the tender aged boy to be assigned to the respondent-father, even on an interim basis for a period of 15 days each month, is grossly unjustified and may have serious adverse effects on the emotional and physical well-being of the child and may create a sense of deep insecurity in the boy owing to forced separation from the mother. The interim arrangement made by the High Court to the extent of the three-year-old son is totally uncalled for and unsustainable on the face of the record and is hereby set aside”, it stated.
While considering the interim custody of the eight-year-old daughter granted to the respondent-father, the Bench observed that he was unable to provide her with nutritious, home-cooked meals, relying instead on restaurant or hotel food. The Court further noted that it was unrealistic to expect the father to devote uninterrupted attention to the child throughout the custody period, given his professional and personal commitments. As a result, the child would be left alone for significant periods without proper companionship or care.
However, the appellant-mother’s parents reside with her, and she also benefits from the flexibility of working from home. It was further noticed that the younger brother of the girl child is there to provide her healthy company. “Hence, the emotional and moral support which the child gets at her mother’s home is manifold than what is being provided by the father during the interim custody period. The period of 15 days during which the daughter would be with the father would also lead to deprivation of her company to her sibling, the boy child aged three years.”
The Bench observed that the High Court had erred in granting the respondent-father interim custody of the children for 15 days each month, stating that, “The periodic division of custody is definitely adverse to the well-being; physical, mental and emotional, of the children. In a long run, this arrangement may prove extremely harmful and may cause irreversible mental trauma to both the children.”
Accordingly, the Bench allowed the appeal and directed that the father would be granted interim custody of the daughter on alternate Saturdays and Sundays each month. The Bench also ordered, “On either of these two days, the respondent father will be entitled to meet and have interim custody of the boy child for a period of four hours subject to the comfort of the child. This period of four hours interim custody of the boy shall be supervised by a child counsellor, who is to be engaged by the respondent father with prior approval of the family Court.”