When it comes to deciding who should be given custody of a five-year-old child, it is preferable to let the biological mother and stepfather take care of the child than forcing him or her to live along with the biological father and stepmother, the Madras High Court has said.
Justices Paresh Upadhyay and D. Bharatha Chakravarthy made the observation while reversing an order passed by a single judge directing a woman to handover the custody of her son to her former husband since the judge felt that the stepfather might not take care of the child.
Disagreeing with such a conclusion arrived at by the judge, the Division Bench said: “We are of the opinion, that it is based on general opinion and not on any evidence as to the facts of the case. There is nothing on record in the present case that he (stepfather) did not take proper care.”
Even if it had to be considered that stepparents would generally be indifferent, then such opinion of the single judge would equally apply to the stepmother too since, in the present case, the woman’s former husband too had remarried after their marriage got dissolved in 2019, the Bench pointed out.
Authoring the verdict, Justice Chakravarthy said, considering the tender age of the child and that he had been in the custody of his mother all along, “it would be in the paramount interest of the minor child to be left with the appellant (mother) than under the care and custody of the respondent (father).”
The Bench also disagreed with the second reason cited by the single judge who had found the mother guilty of violating the terms under which she had obtained Khula (divorce at the instance of a Muslim woman). As per the terms, she had to observe Iddat (period when a widow or divorcee must not remarry in order to rule out pregnancy) for three months.
The terms, agreed upon by both parties before a Jamaat in her native Labbaikudikadu in Perambalur district, also stated that she could keep custody of the child until he attains seven years of age if she does not remarry till then and that she could take care of him only till he turns 28 months old if she remarries after the Iddat.
As per Mohamedan law, the mother was entitled to take care of a male child till he attains seven years of age and that of a female child till she attains puberty. However, in the present case, the mother had agreed to give custody of her son to the former husband after the child turns 28 months old if she gets remarried.
In violation of the terms of agreement, she had remarried a person working in Dubai during Iddat itself, obtained a passport for her son in a different name and taken the child along to the Gulf nation. Further, her second husband was already a married man who had two children through his first wife.
“The respondent (mother) has not established that the petitioner (father) is acting against the interest and welfare of the child whereas, the petitioner has established that the respondent is acting against the terms of the agreement,” the single judge had said and granted the custody of the child to the father.
Not in agreement with such a course adopted by the single judge, the Division Bench said: “We are dealing with a child aged about five years. Mere violation of an agreement before the Jamaat cannot result in the uprooting of the normal place of residence and environment in which the child is comfortably living in.”
It went on to state: “The order of learned single judge results in uprooting the child from its ordinary place of living and handing over the child from the custody of the mother to the father. We deem it not proper in the best interests of the minor child. More than the rights of the father, the interests of the tender child have to weigh in.”
