“Interest and Welfare of minor children are of paramount consideration”: Madras High Court in child custody case

The Madras High Court has recently observed that under Section 25 of the Guardians and Wards Act, the interest and welfare of the minor child are of paramount consideration.

Dealing with the matter relating to custody of minor children, the division bench of Justice SM Subramaniam and Justice J. Sathya Narayana Prasad stated, “Courts are not expected to grant custody of minor children routinely, merely based on allegations and counter-allegations set out in the petition and counter affidavit. Beyond such pleadings, the psychological aspect of the children, the real interest involved, and what would be better for their future have to be necessarily considered as the children are the backbone of our great nation. They are the nation builders.”

“The issue regarding custody involves sentiments and psychological aspects of children, which have to be dealt with care and caution for providing a better atmosphere, good education, and a decent life to minor children,” Court added.

Court further observed that today’s younger generation is wise and intelligent and can assess human behaviors. Hence, Court said, “When the children are left in a lurch by the father and mother, the minor children have to be enquired and the veracity of the statement made by them has to be assessed properly to conclude the interest of the children."

“A good family alone can create a good nation. Every child has got a right to get better life as enunciated in the Indian Constitution. Right to life includes a decent life and not mere animal life. The life of minor children has to be protected by all concerned. Courts must ensure that minor children are protected and their interests, vision, and wishes are preserved to the extent possible to provide them a better future as it is the mandate of the State under the Constitution,” stated the court.

As per the petition, the mother working as a Head Constable in Tamil Nadu Police Department, and the father employed as Junior Assistant in Tamil Nadu Electricity Board were granted divorce by way of mutual consent.

The mother had submitted that the father had forcibly taken their two minor daughters away to the residence of his sister and prevented her from visiting the children. Consequently, she was forced to file a petition seeking the custody of her daughters.

An interim order was passed granting custody of children during weekends to the mother, the same was not honored by the father. Subsequently, the court dismissed the petition stating that the father was also a guardian and that the mother had not made out a valid ground to provide custody.

The father objected to the submissions of the mother and stated that the children were happy with him and that the interest of the children was being taken care of by his sister. It was further submitted that he was dutiful and the education of the children was also being looked after by him.

Court noted that the Lower Court concluded that both father and mother were employed and the father was also capable of looking after the children.

However, the bench opined that the Lower Court failed to consider the fact that the father is not looking after the children but had left the children in his sister's house and the attention given by the father's sister can never be compared and equated to the attention given by either father or mother. “The minor children in the present case, undoubtedly, cannot have a good atmosphere in his sister's house”, the division bench stated.

Bench stressed that it was necessary to examine the children before the court and when the two minor children were produced before them, they started crying spontaneously and complained about being tortured/beaten up by the father. They informed the court that they did not want to go with him and said, "Please, do not send us along with our father".

Meanwhile, the bench had also taken note of the attitude of the father showing unwillingness to bring the children before the court.

Considering this, Court opined, “When the mother of the minor children is also capable of providing a better and decent living to the children as she is working as a Head Constable in Police Department and drawing a decent salary, there is no reason, whatsoever, to allow the children to be brought up by their father's sister.”

Thus, while granting the custody of two minor children to their mother, Court stated that the minor children were interested to live with their mother and as both the children were girls, they needed certain protection and assistance at the hands of the mother, which may not be possible for the father.

Court also directed the father to hand over all the certificates, documents, and belongings of the children to the mother on the same day.

Case Title: C. Shamilakumari v. P. Chandrasekar