ERNAKULAM: <\/em>The Kerala High Court<\/a><\/strong> Bench of Chief Justice Soumen Sen and Justice Syam Kumar V.M.<\/strong> recently held that in a child custody<\/a> dispute, the wish of the child is important, but it cannot become the only reason to give custody to one parent. The Court made it clear that the real test is the welfare and best interest of the child.<\/strong><\/p>\n\n\n\n The case came before the High Court after a mother, who was residing in Canada, sought custody of her 12-year-old son<\/strong>. The child was staying with the father in Kerala. The mother alleged that her estranged husband had not returned the child to her when she was preparing to go back to Canada after visiting India to see her sick father.<\/p>\n\n\n\n The Court noted that the mother had allowed the child to spend time with the father <\/strong>so that the child could have a healthy bond with him. This was not treated as a weakness against the mother. The Court appreciated that she had permitted the child to meet and stay with the father. However, the problem started when the father allegedly did not bring the child back<\/strong> to the mother before her return to Canada.<\/p>\n\n\n\n The father\u2019s side argued that the child did not want to go back to Canada<\/strong> and wanted to stay with him in Kerala. It was also claimed that the arrangement was mutual and consensual<\/strong>. But the Court did not accept that the child\u2019s wish alone could decide such a serious custody issue.<\/p>\n\n\n\n \u201cThe Court, while deciding the welfare of the child, is required to take into consideration the wishes of the child, but the welfare of the child being the paramount consideration, the same should be borne out from the facts and circumstances of each case. The mere wish of the child is not sufficient to give custody of the child to one parent over the other,\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n The Court stated.<\/p>\n\n\n\n The High Court looked at the full background of the case. It noted that the child had been living with the mother in Canada since the couple separated in 2024<\/strong>. The child was also studying in Canada. The Court also noticed that before this incident, the child had never expressed any desire to stay permanently with the father in Kerala.<\/p>\n\n\n\n Another important fact was that the father had not filed any proper custody case before any court<\/strong> to seek custody of the child. This became relevant because custody cannot be changed merely by keeping the child and then saying that the child now wants to stay there. A parent who wants custody must approach the proper court<\/strong> and prove that the change is in the welfare of the child.<\/p>\n\n\n\n \u201cMatured thinking is indeed necessary in such a situation to decide as to what will ensure the benefit of the child and his welfare. A child torn between his love and affection for both parents may not be in a position to take a conscious decision or express an intelligent preference,\u201d<\/em><\/strong><\/p>\n<\/blockquote>\n\n\n\n The judgment stated.<\/p>\n\n\n\n The Court also referred to a child support arrangement<\/strong> dated January 2024, which had been submitted to the Canada Revenue Agency<\/strong>. As per this arrangement, the father had given up custody<\/strong> and had accepted that the mother would be the primary caregiver<\/strong> of the child. It was also recorded that the mother would bear all expenses of the child.<\/p>\n\n\n\n This point became very important. The father had earlier accepted the mother as the primary caregiver. Later, when the child came to Kerala and developed affection<\/strong> towards him during the stay, the father tried to rely on the child\u2019s alleged wish to continue with him. The Court said that such affection may naturally develop when a child stays with a parent<\/strong>, but that alone does not mean the child\u2019s long-term welfare lies there.<\/p>\n\n\n\n At the same time, the Court\u2019s reasoning is not that the father has no role in the child\u2019s life. The Court allowed the father to interact with the child through video conferencing<\/strong> as and when required. This means the Court recognised the father\u2019s relationship with the child, but held that custody must remain with the mother<\/strong> because the welfare test supported her in the facts of the case.<\/p>\n\n\n\n The High Court finally directed the father to immediately hand over the child to the mother,<\/strong> who was present in Court and was scheduled to fly back the next day. The Court held that prolonged stay with the father in Kerala may not be in the best interest of the child in the present facts.<\/p>\n\n\n\n <\/p>\n\n\n\n\n
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EXPLANATORY TABLE: LAWS & LEGAL PROVISIONS INVOLVED<\/h3>\n\n\n\n
Law \/ Provision<\/strong><\/td> Purpose<\/strong><\/td> How It Applied In This Case<\/strong><\/td><\/tr><\/thead> Welfare of Child Principle<\/strong><\/td> In custody cases, the child\u2019s welfare is the highest consideration.<\/td> The Court held that the child\u2019s welfare was more important than the child\u2019s temporary wish to stay with one parent.<\/td><\/tr> Child\u2019s Preference \/ Wish<\/strong><\/td> Courts may consider what a mature child wants, but it is not binding.<\/td> The father argued that the minor wanted to stay with him in Kerala, but the Court said the wish alone cannot decide custody.<\/td><\/tr> Best Interest of Child<\/strong><\/td> Court examines education, stability, caregiving history, emotional condition, and long-term welfare.<\/td> The child was living and studying with the mother in Canada since separation, so the Court considered continuity and stability.<\/td><\/tr> Primary Caregiver Principle<\/strong><\/td> The parent who has been taking care of the child on a regular basis is relevant in custody decisions.<\/td> The January 2024 child support arrangement showed the mother was accepted as the primary caregiver.<\/td><\/tr> Parens Patriae Jurisdiction<\/strong><\/td> Court acts as protector of the child when parents are fighting over custody.<\/td> The Court did not simply accept either parent\u2019s emotional claim. It examined what would be better for the child.<\/td><\/tr> Video Conferencing Access<\/strong><\/td> Courts may allow virtual interaction to preserve the bond with the non-custodial parent.<\/td> The father was allowed to interact with the child through video conferencing as and when required.<\/td><\/tr><\/tbody><\/table><\/figure>\n\n\n\n CASE DETAILS<\/h3>\n\n\n\n
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KEY TAKEAWAYS<\/h3>\n\n\n\n
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