Law permits on certain
conditions the child custody to the grand parents. Being father and the mother
is a natural guardian, the custody of the child remains with them. Grand
parents were granted the child custody in certain circumstances and conditions.
Before granting child custody two
things should be considered by the court. They are (1) Controlling consideration governing the Custody of
children is the welfare of children and not the right of their Parents as
per Nil Ratan Kundu case in 2008 (9) SCC 413 (2)
Paramount consideration is the welfare of the minor and not the legal right of
a particular party as decided in 1993(1) RRR 413 (SC) (3) If the minor
is old enough to form an intelligent preference or judgment, the Court must
consider such preference as well, though the final decision should rest with
the Court as to what is conducive to the welfare of the minor. (4) In the Nil Ratan Kundu case child was called by Supreme Court in chamber
and custody given to maternal grand parents in preference to father.
On determining the child custody court may not always give custody to
parents alone but in extra ordinary circumstances it may also grant custody to
the grand parents. Before determining the custodial rights courts should go the
following acid test.
(1) Object of Guardian and Wards Act, 1890 is not
merely physical custody of the minor but due protection of the rights of
ward's health, maintenance and education.
(2) Due regard has of course to be
given to the right of the father as natural guardian but if the custody of
the father cannot promote the welfare of the children, he may be refused such
guardianship. 1973(1) SCC 840 relied.
(3) Simply because the father loves
his children and is not shown to be otherwise undesirable does not necessarily
lead to the conclusion that the welfare of the children would be better
promoted by granting their custody to him.
(4) First and the paramount
consideration is the welfare of the child and not the right of the parent.
JT 2008(6) SC 634 relied.
(5)Custody of child cannot be
given merely on ground of financial soundness of the party - Paramount
consideration should be welfare of minor.
(6) The moral and ethical welfare
of the child must also weigh with the Court as well as its physical well
being.
(7) Father is natural guardian of
minor, but paramount consideration is the welfare of the minor and not the
legal right of a particular party.
(8) Keeping in mind the welfare of
the child as the sole consideration, it would be proper to find out wishes
of the child as to with whom he or she wants to live.
(9) Custody cases cannot be decided on documents, oral
evidence or precedents without reference to 'human touch' - The human touch is
the primary one for the welfare of the minor since the other materials may be created
either by the parties themselves or on the advice of counsel to suit their
convenience. AIR 2003 Madras 315 relied.
(10) A court while dealing
with custody cases, is neither bound by statutes nor by strict rules of
evidence or procedure nor by precedents - In selecting proper guardian of a
minor, the paramount consideration should be the welfare and well-being of
the child.
(11) If the minor is old enough to
form an intelligent preference or judgment, the Court must consider such
preference as well, though the final decision should rest with the Court as to
what is conducive to the welfare of the minor.
(12) Controlling consideration
governing the custody of children is the welfare of children and not the
right of their parents.
(13) One of the matters which is
required to be considered by a Court of law is the 'character' of the proposed
guardian.
On under going the above acid test
a child custody can be given to the grand parents instead of the father.
Author
K.P.Satish Kumar M.L. Advocate Madras High Court
Leading Child
Custody Advocate
By Team
Daniel & Daniel
Head Office
:- New No.99, 3rd Floor, Armenian Street, Chennai-600001, Tamilnadu,
India.
Helpline:-
9962999008.
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