Burden to prove suitability to be granted interim custody of the child is not on the mother

Supreme Court: Deciding on the issue of interim custody of the minor child, the Bench comprising of Vikramajit Sen and C. Nagappan, JJ transferred the custody of the child to Appellant/Mother from Respondent/Father and granted certain visitation rights to the father. The Bench while deciding the issue has dealt and explained the legal concept of guardianship in detail by referring to relevant provisions of various acts such as Hindu Minority and Guardianship Act, 1956, Juvenile Justice (Care & Protection) Act, 2000 and Guardians and Wards Act, 1890. It emphasized that in cases where custody of a child below 5 years of age is involved the mother is per se best suited to care for the infant. The onus lies on the father to prove the unsuitability of the mother. It is only the welfare of the child which is the focal point of consideration.

Applicant/Father initiated the proceedings before the Court of IInd Additional Civil Judge, Senior Division, Margao, Goa contending that the mother, who is a Harvard graduate and a College Professor in California is not fit for custody of the minor child due to Bi-polar disorder. The father on the other hand has no regular employment and is an alleged alcoholic and a drug-addict. Pending the decision, the court ordered interim custody of the child to the Mother. This order was further challenged by the applicant before the learned Single Judge of High Court of Bombay at Goa which allowed continuation of the custody by the petitioner.

On appeal the Court set aside the impugned order dated 18.09.2014 where the mother was asked to established her suitability to be granted interim custody of the child for the reason that the onus is on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. and that the wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.  Roxxan Sharma v. Arun Sharma, 2015 SCC OnLine SC 135, decided on 17.02.2015


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