Children clinging to mother no ground to deny father custody: Allahabad High Court

Emphasising that children require the continued affection, care and emotional support of their mother, and it is in their welfare that their relationship with her be preserved and nurtured, the court said that the mother, therefore, be entitled to visitation and interaction rights.

Father sought custody of children

The case arose from a matrimonial dispute between a husband and his wife, concerning the custody of their two minor children, aged about seven and three years. The children were residing with their mother and maternal grandfather after the couple became estranged.

Justice Sandeep Jain heard the matter on September 28.

The father approached the high court seeking custody of the children, stating that he was capable of providing them with proper care, education, financial security, and a suitable living environment. He also expressed willingness to resume cohabitation with his wife and discharge his matrimonial and parental responsibilities.

The wife, however, told the court that she had allegedly faced harassment and cruelty in her matrimonial home and was unwilling to resume cohabitation. She was professionally qualified but was not employed and was dependent on her father.

The court also noted that an earlier order had granted the father temporary custody on Sundays and during holidays, but a quarrel with his in-laws prevented him from taking custody on one occasion.

The father contended that the wife is presently not earning any income and is dependent upon her father, whose income, according to him, is also limited.

Father demonstrates financial capacity: Order

The court observed that the welfare and best interests of the children are the paramount consideration in custody matters, and parental rights cannot override the children’s welfare.

The court said that custody cannot be decided merely based on the parents’ legal rights. It must consider the children’s physical, emotional, educational and developmental needs, the stability of the proposed environment and each parent’s capacity to provide care and protection.

“The custody order must not operate to sever or diminish the relationship of the children with either parent. Rather, it should facilitate a healthy and continuing relationship with both, to the extent compatible with their welfare,” the ruling observed.

It noted that the mother was presently dependent on her father and that there was no documentary material establishing the maternal grandfather’s income. At the same time, the court clarified that the mother’s lack of current employment could not, by itself, be treated as adverse to her.

The court found that the father had placed material showing his financial capacity, residential accommodation and willingness to take responsibility for the children’s education and upbringing.

It stressed that custody should not sever the children’s relationship with either parent. While granting custody to the father, the court said the children needed their mother’s continued affection, care and emotional support and therefore protected her visitation and daily video-call rights.