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Mother is not always the natural guardian PDF Print E-mail
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Written by Rakesh Bhatnagar   

NEW DELHI: There has been an increasing demand for restoring to children the right to live, as they want to, and be in the company of both parents, however bitter their relations.

In a recent judgment, the Supreme Court has sought to remove the impression that only the mother can be a good guardian of the child whose parents have separated.

The Karnataka High Court had given custody of a nine-year-old girl to her mother, who divorced her stockbroker father to marry a known cricketer.

The couple had been married for about 12 years and got a divorce through mutual agreement without making accusations against each other, something rare in matrimonial disputes. At the time of their separation, the child was four years old.

After their separation, the parents settled down though they were still litigating over the child's custody. Their daughter, therefore, lived like a shuttlecock.

Insecurity and helplessness naturally gripped her. But the parents continued their tryst with justice right up to the Supreme Court.

The trial court said the husband, who had not married and regulated his life to be with his daughter, should be given her custody. Her mother's new lifestyle, after her marriage to a well-known cricketer, came in the way of securing the child's custody.

As was expected, her second husband was a sport in the real sense of the term. He also assured the courts that he would do his best for the betterment of the child and ensure that she loved her natural father.

He said his wife had left a corporate job and was expecting. Under such circumstances, the child would enjoy the company of a younger member in the family.

During her personal meetings with the high court judges, the daughter did not show any malice towards her natural father, mother or stepfather.

The parties showed exemplary courtesy and respect for each other. In fact, they were concerned about the child's welfare at all cost.

Obviously, it was not child's play for the Supreme Court Bench of Justices Shivaraj V Patil and D M Dharmadhikari to decide the appeals filed by the divorced couple.

What troubled the court most was that the high court's "general" comment that the mother should be preferred to the father as far as custody of the child is concerned.

Rejecting such a "general" observation in a matter, which solely affects a child born out of a disturbed wedlock, the Bench said: "Such generalisation in favour of the mother should not have been made."

The judges also refused to accept the view that "the mother always can claim superior right to retain the custody of the child".

Thus, the old belief that in a dispute between an estranged couple over the custody of their child, the mother's right would be superior over the father's has been given a go by.

The paramount importance for the courts would now be the interest of child alone, and not the old theory that the mother enjoys an inherent right over her child's custody.

 



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