Ker HC | Welfare of the child is of supreme consideration while granting custody

Kerala High Court: A Division Bench of K. Harilal and T.V Anil Kumar, JJ. dismissed an appeal made by the maternal grandparents of the child after taking into consideration, the welfare of the child.

This case is related to the custody of the child. In this case, appellant – maternal grandparents of the child – submitted before the Court that their daughter Sajna was married to the respondent and she was later found dead in her matrimonial house in a suspicious condition. They further claimed that the 2-year girl child of the appellant was always taken care of by them and the respondent- father never took care of the child as if he was not interested in the child. A petition was filed by the grandparents in the Family Court for a decree of perpetual prohibitory injunction restraining the respondent from taking forcible custody of the child. The Family Court dismissed the petition. Aggrieved thereby, this appeal had been filed by the grandparents.

Learned counsels for the appellant Jacob Sebastian and K.V Winston submitted that after the suspicious death of the appellant’s daughter, the child was taken care of by them and the respondent declined to take care of her. A case was also lodged against the respondent in the police station under Sections 498-A, 304-B, 302, 201 and 149 of the Penal Code, 1860. Further, the respondent was a drunkard and spendthrift who used to ill-treat their deceased daughter and demanded dowry. His cruel conduct towards his wife resulted in her death. Respondent remarried for his pleasure, forgetting that he had a child to look after. Thus, he was unfit to seek permanent custody of the child. They also alleged respondent to have sexually harassed the child.

Learned counsels for the respondent, G. Sreekumar averred that after the death of his wife, respondent alone had maintained the child and taken care of her affairs. Appellant or her family members never took care of the child. He was not responsible for the death of his wife and as a matter of fact, her death was due to heart failure. She was an epileptic patient even before marriage which had been suppressed. It was claimed that the respondent was a driver by occupation and able to meet the financial needs of the child.

The Court observed that whenever there is a rival claim for guardianship, the court’s power to appoint the most suitable person among the contestants could be exercised only upon taking into view those considerations which weigh in favour of the welfare of the child. The Court also observed that the allegations made by the appellant were false. Also, the respondent earned well whereas the appellants were old and had less financial means. Moreover, the allegation made regarding sexual harassment was false.  The Court thus dismissed the appeal and gave permanent custody of the child to the respondent-father. However, appellants were allowed to meet the child on the premises of the Family Court every Saturday from 10:30 AM to 4:00 PM.[Suhara v. Muhammad Jaleel, 2019 SCC OnLine Ker 1237, decided on 10-04-2019]

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