Child's welfare prioritized over parents' demands in custody battle – Kerala HC

Kerala High Court in a latest Judgement (ANISH vs ASWATHY D.D 15 Feb 2023) held that the welfare of the child is the primary and paramount consideration in matters of child custody. The child requires the love, affection, company, and protection of both parents, and it is his/her basic human right.

The petitioner sought permanent custody of his 16-year-old son, who was in the custody of the respondent-mother. The petitioner also requested interim custody of the child for certain days of the week. The respondent opposed the petitioner's request, citing the petitioner's alleged extramarital affair and the child's obesity and related disabilities. After hearing from both parties and the child, the Family Court granted the petitioner visitation rights on every second Saturday from 10.00 a.m. to 12.00 noon, with the respondent choosing a suitable location for the visits.

The petitioner, not satisfied with the court's decision, filed an Original Petition under Article 227 of the Constitution of India challenging the arrangements made by the Family Court. The Court directed the Secretary of the Taluk Legal Services Committee to visit the child and submit a report on the child's limitations for movement and other relevant circumstances. The report was then forwarded to the Court by the Chairman of the Taluk Legal Services Committee. The Court also directed the child to attend the proceedings online, which were held in-camera.

The Kerala High Court observed that the welfare of the child is the primary and paramount consideration in matters of child custody. The Court noted that the child requires the love, affection, company, and protection of both parents, and it is his/her basic human right. The Court held that the custody of the child should be shared between both parents in such a way that the child does not lose social, physical, and psychological contact with any one of the two parents.

The Court emphasized that the welfare of the child must be given predominance, and too much importance cannot be given to the demands of the parents. The Court held that emotional bonding and warmth with both parents are essential for proper upbringing, and overnight custody of the child to the petitioner is not conducive to the child's best interests.

As a result, the Court upheld the Family Court's order but modified the time allowed for visitation. The petitioner was allowed to interact with the child from 10.00 a.m. to 12.00 noon on every second and fourth Saturday, with the respondent choosing the venue for interaction, taking into account the convenience and preference of the child. The Original Petition was disposed of accordingly.

ANISH vs ASWATHY