If A Child Is Grown Up & Capable To Take Rational Decisions In Personal Matters, Parents' Demand Cannot Be Considered- Kerala HC

The Kerala High Court observed that the Court should not give too much importance to the demands of the parents’ battling the custody when a child is grown up and is capable of making rational decisions on his/her own.

The Bench of Justice Anil K. Narendran and Justice P.G. Ajithkumar observed that “the welfare of the child has to be given predominance. Since he is grown up and able to take rational decision in his personal matters, too much importance cannot be given to the parents' demands.”

Advocate M.K. Sood appeared for the petitioner and Advocate Chako CA appeared for the respondent

In this case, petition was filed against the order of the Family Court wherein the father was denied the custody of the child. But was granted limited visitation rights. Aggrieved by the Family Court's order, the father approached the High Court.

The Court personally interacted with the child to ascertain his desire and the child had expressed his desire to stay with his mother.

The Court observed that in custody cases, the welfare of the child is of paramount consideration. Courts should decide the issue only on the basis of what was in the best interest of the child.

The Counsel for the respondent had opposed the plea on the ground that overnight custody of the child could not be given to the petitioner father as the child had some health concerns relating to obesity and this severely affected his mobility.

The Court in this regard, directed the Secretary of the Talik Legal Services Committee at Chavakkad to submit a report after the physical condition of the child with regard to the limitations for movement was verified.

The Court noted that from the report, it could be seen that special arrangements were made in the school to suit child’s convenience as he often required a wheelchair to move around due to his obesity and other related issues. Moreover, the respondent needed to reach the school at noon to help the child in his daily pursuits.

The Court further reiterated the settled position of law that the child had a basic human right to have the love and affection of both parents and courts should pass orders ensuring that the child was not totally deprived of the love, affection, and company of one of her/his parents and said that “It is essential that the child maintains an emotional bondage and warmth with both parents which helps his proper upbringing.” 

The Court observed that “Considering the physical condition of the child and the special needs and conveniences required for his day-to-day affairs, we hold that giving overnight custody of the child to the petitioner is not conducive and in the interest of the child.”

Therefore, the Court denied the custody of the child to the father, modified the condition set by the Family Court, and allowed the Petitioner-father to interact with the child from 10:00 a.m. till 12:00 noon on every second and fourth Saturdays.

Accordingly, the petition was disposed of.

Cause Title- Aneesh v. Aswathy 

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