If Minor Child Is Old Enough To Form Intelligent Preference, Court Must Consider It While Granting Custody: Chhattisgarh HC

The Chhattisgarh High Court has emphasized that during a custody case, the Court must also consider the preference of a minor child if they are old enough to form an intelligent preference,  although the final decision rests with the Court regarding what is conducive to the welfare of the child.

In that context, the Bench of Justice Goutam Bhaduri and Justice Radhakishan Agrawal observed that, "if the minor child 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."

Senior Counsel NK Shukla, along with others, appeared for the appellant-husband, while Counsel Malay Shrivastava appeared for the respondent-wife.

The appellant-husband alleged negligence by the respondent-wife towards their child, citing her schizophrenia. He sought divorce due to mental harassment and requested custody of their child, claiming to have cared for the child since age one.

The wife denied negligence, accusing the husband of harassment and dowry demands, arguing she was competent to care for the child.

The Family Court granted custody to the wife, prioritizing the child's welfare. The husband appealed, asserting his role as a natural guardian and ability to provide better education, while the wife's counsel argued the husband's alleged negligence and incompetence.

It was observed that, "looking to the welfare of the child being supreme consideration, this Court interacted with the child to know her wish, thereupon she has expressed her wish to stay with father. Therefore, considering the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values and considering the overall facts, we are of the opinion that looking to the paramount interest of the child, it would be proper and appropriate if the father (appellant) holds the custody of the child and we order accordingly."

The Court further noted that the statement of the child demonstrated that the child has to bear the brunt of the mother's condition and that the continuation of the custody of the child with the mother would not be proper.

Subsequently, the Court ordered to facilitate the grant of visitation rights and contact rights to the mother.

Cause Title: K. Kiran Kumar vs Swaroopa

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