Hyderabad: The Telangana High Court has clarified that the custody of a child below the age of seven years need not be with the mother as prescribed in the statute.
The High Court reiterated that child welfare will be given paramount consideration in giving custody to the suitable parent.
A division bench of Justice Raghavendra Singh Chauhan and Justice T. Amarnath Goud suggested that family courts consider and assess every case separately on its facts in deciding the petitions regarding child custody.
The High Court was striking down an order issued by the city civil court at Hyderabad, which had directed that custody of a 23-month-old boy should be given to his mother.
The bench noted that the question of the welfare of the minor child has to be considered keeping the relevant facts and circumstances of the individual case in mind and that the court must not merely follow the precedents.
The bench was dealing with a petition by one Khaja Raheemuddin who urged the court to allow him to remain the custodian of his son. The city civil court order had rejected his plea based on on the judgement of the Allahabad High Court and Section 352 of the Principles of Mohammedan Law and ordered the custody of the child, till he turns seven years of age, must remain with the mother, Ms Raheem Unnisa Begum.
While stating that the interim custody of the child should continue with Mr Raheemuddin, Justice Chauhan and Justice Goud observed that while determining which parent should be allowed the responsibility of a child, the first and the paramount consideration should be the welfare and interest of the child and not the rights of the parents under a statute.
The bench opined that better financial resources of either of the parents or their love for the child may be relevant considerations but cannot be made the foremost determinants for the assignment of custody of the child.
Justice Goud said, “Each case must be judged on its own facts, decided cases can hardly serve as binding precedents and the factual aspects of every case must be carefully considered.”
Mr Raheemuddin alleged that the child would be neglected if allowed to stay with the mother.
While allowing the petition to continue the interim custody of the boy with Mr Raheemuddin, the High Court directed the lower court to come to a conclusion pertaining to the original petition pending before it within six months.