Kid’s welfare, not rights of parents, supreme: SC

In a major ruling that could dispel the common perception that a father is disposable item like a child’s diaper in a matrimonial dispute, the Supreme Court has said that the will of a child must be respected and he or she has the right to share the roof with the parent of his/her choice.

After interacting with the two daughters of litigating parents, the Supreme Court ordered that they are allowed to be in their father’s custody but the estranged mother would have visitation rights.

The judges met the children —17 years and 11 years — separately in their chamber and asked them several questions, including their preference for custody. The children said they would like to live with their father and they do not want to go with their mother.

“We feel that if the children are forcibly taken away from the father and handed over to the mother, undoubtedly, it will affect their mental condition and it will not be desirable in the interest of their betterment and studies,” a bench of justices P Sathasivam and J Chelameswar observed.

Taking note of the fact that a mother does have an important role to play in bringing up a child, particularly a daughter, the court said it would be better if she is “first allowed to make initial contact with the children, build up relationship with them and gradually restore her position as their mother”.

However, in a child custody dispute, “the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute”, the court ruled.

This verdict assumes significance in view of the increasing number of cases in which only mothers are given the custody of children and fathers’ claim is rejected as they can’t manage their affairs.

According to an estimate offered by the then law minister M Veerappa Moily last year there were around 55,000 couples involved in divorce cases in 2010.