Biological mom and stepfather are preferable to organic father and stepmother in custody instances: Madras High Court

We are dealing with a child around five years old. The interests of the child must be weighed more than the father’s rights, judges say

We are dealing with a child around five years old. The interests of the child must be weighed more than the father’s rights, judges say

When deciding who should give custody of a five-year-old child, it is preferable to let the birth mother and stepfather care for the child than to force them to live with the birth father and stepmother, the Supreme Court said from Madras.

Justices Paresh Upadhyay and D. Bharatha Chakravarthy made the observation while overturning an order by a single judge directing a woman to give custody of her son to her ex-husband because the judge believed that the stepfather himself might not take care of the child.

The division bench disagreed with such a conclusion by the judge, saying: “We believe it is based on common opinion and not on evidence of the facts of the case. There is nothing on record in the present case that he (stepfather) did not act with care.”

Even if it were to be taken into account that stepparents were generally indifferent, such an opinion of the single judge would also apply to the stepmother, since in the present case the woman’s former husband had also remarried after the dissolution of their marriage in 2019, the bank pointed out there.

Writtening the judgment, Judge Chakravarthy said, given the child’s tender age and the fact that she had been in her mother’s care all along: “It would be in the minor child’s highest interest to remain with the applicant (mother). than under the care and custody of the respondent (father).”

The Chamber also disagreed with the second reason given by the single judge, who found the mother guilty of violating the conditions under which she had received khula (divorce on the instructions of a Muslim woman). According to the conditions, she had to comply with Iddat (period during which a widow or divorced person must not remarry to prevent pregnancy) for three months.

The terms, agreed by both parties ahead of a jamaat in her hometown of Labbaikudikadu in Perambalur district, also said she could retain custody of the child until he is seven years old if she does not remarry by then, and that she could only take care of him until he was 28 months old if she remarried after the iddat.

According to Mohammedan law, the mother was entitled to care for a male child until he was seven years old and for a female child until she reached puberty. In the present case, however, the mother had agreed to transfer custody of her son to the ex-husband when the child turns 28 months if she remarries.

In violation of the agreement, she had herself remarried to a person working in Dubai during the Iddat, obtained a passport for her son with a different name and took the child to the Gulf state. In addition, her second husband was already a married man who had two children through his first wife.

“The respondent (mother) has not established that the applicant (father) is acting against the interest and welfare of the child, while the applicant has established that the respondent is acting against the terms of the agreement,” the single judge had said and the father transfer custody of the child.

Disagreeing with such an approach by the single judge, the Senate said: “We are dealing with a child of about five years. The 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 comfortably lives.”

It goes on to say: “The decision of the learned single judge results in the uprooting of the child from its habitual residence and the handing over of the child from the mother’s care to the father. We do not believe it is appropriate in the best interests of the minor child. The interests of the tender child must be weighed more than the rights of the father.”