LEKHA versus P. ANIL KUMAR

Citation: [2006] SUPP. 9 S.C.R. 234 · Decided: 21-11-2006 · Supreme Court of India · Bench: AR. LAKSHMANAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
LE KHA 
v. 
P. ANIL KUMAR 
NOVEMBER21, 2006 
[DR. AR. LAKSHMANAN AND AL TAMAS KABIR, JJ.] 
Guardians and Wards Act, 1890-ss. 17 and 25-Custody of 12 year 
child-Child living with mother for last several years-Trial Court interviewed 
C the child who expressed desire to live only with his mother-Mother having 
income source and also having land and properties in her name-Trial CoOJrt 
held that for welfare of the child, custody be given to mother-High Court 
without interviewing the child directed grant of custody to the father-On 
appeal, held: Paramount consideration is welfare ofthe child-He is happy 
and contented with his mother and it would not be right to unsettle the 
D same-High Court erred in giving custody of child to father only on ground 
of remarriage of mother without considering .other aspects of the melter-It 
ought to have ascertained the wishes of the child before granting custody to 
the father. 
On the issue of custody of a 12 year old child, the Trial Court, after 
E considering the evidence on record and interviewing the child, held that for 
welfare of the child the custody should be given to Appellant-mother and 
dismissed the original petition of the Respondent-father filed under the 
Guardians and Wards Act. On appeal, the High Court directed to give custody 
of the child to the father without interviewing the child. The High Court 
F allowed the appeal only on the ground of remarriage of the Appellant. It also 
held that Respondent-father, a businessman in Saudi Arabia, was more apt 
and suitable to protect the interest of the minor child and also to impart 
education to his required standard. 
The questions which arose for consideration in the present appeal are 
G 1) Whether the High Court erred in giving custody of child to father only on 
ground of remarriage of mother without considering other aspects of the 
matter and 2) Whether the judgment of the High Court is also unjustifiable 
because before passing the same, it ought to have enquired about the mental 
make-up of the child to ascertain his willingness to go with his father. 
H 
234 
""""-
235 
LEKHA v. P. ANIL KUMAR 
Allowing the appeal, the Court 
A 
HELD: 1.1. The remarriage of the mother cannot be taken as a ground 
.• 
for not granting the custody of the child to the mother. The paramount 
consideration should be given to the welfare of the child. At the interview, the 
boy has expressed his willingness and desire to live only with his mother and 
B 
was admitted by him that the mother will provide him good education. The 
mother is also drawing pension of Rs.6,000/- p.m. and also having land and 
properties in her name. When the boy says he prefers to live with his mother, 
it will be beneficial for the boy and his education for a better future. The High 
Court erred in allowing the appeal on the ground of remarriage of the 
appellant without considering the other aspects of the matter. It is a matter of c 
custody of the child and the paramount consideration should be the welfare of 
the child. The boy is living with his mother for the last several years and the 
separation at this stage will affect the mental condition and the education of 
the child and considering that the child himself attaches importance to his 
education if the custody is to be given to the father now it will affect his 
academic brilliance and future. The High Court ought to have seen that the D 
re-marriage cannot be taken as a ground for giving custody of the child. There 
I 
is also no finding by the High Court that the remarriage has adversely affected 
the mental condition of the minor child. (240-E-H; 241-AI 
1.2. The fact that the mother has married again after the divorce of her E 
first husband is no ground for depriving the mother of her parental right of 
custody. In cases like the present one, the mother may have shortcomings 
but that does .. ot imply that she is not deserving of the solace and custody of 
• 
her child. If the Court forms the impression that the mother is a normal and 
independent young woman and shows no indication of imbalance of mind in 
her, then in the end the custody of the minor child should not be refused to F 
her or else it would be really assenting to the proposition that a second 
marriage involving a mother per se will operate adversely to a claim of a 
mother for the custody of her minor child. [242-E-Fl 
Shaik Moidin v. Kunhadevi, AIR (1929) Madras 33 (Full Bench); Samuel 
Stephen Richard v. Stella 

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