A court should take the necessary steps concerning the custody of a child with its welfare as a paramount factor

A court should take the necessary steps concerning the custody of a child with its welfare as a paramount factor written by Himanshu Garg student of Maharashtra National Law University Aurangabad

MEENAKSHI KHANDELWAL v. SHAILESH KHANDELWAL (2012) 11 SCC 798

RELEVANT FACTS

Marriage between Meenakshi Khandelwal (Petitioner/wife of the Respondent) and Shailesh Khandelwal (Respondent) was dissolved by the Family Court by section 13b of the Hindu Marriage Act, 1955 under divorce by mutual consent. There is a daughter Shrestha. She is nine years old and the family court gave custody of the child to her mother. After that respondent filed an appeal before the High Court to challenge the order of the Family Court. High Court allowed and permitted him to retain the custody of the child and allowed visitation rights to the mother. Now, the petitioner challenges the order of the High Court in the Hon’ble Supreme Court under Special Leave Petition (SLP).

ISSUES

Whether the petitioner can get custody of her child? 

LAW POINTS/ RULE OF LAW

• Section 13b and 26 of Hindu Marriage Act, 1955.
• Section 7 and 17 of Guardians and Wards Act, 1890.

JUDGEMENT WITH REASONING

First of all, in the welfare and interest of the child, Hon’ble Supreme Court directed both the parties to appear before the court with their daughter.

The daughter expressed his views that she is comfortable staying with her father and wanted to continue her education under her father’s guidance. And she also said that she had a grievance against her mother.

After that court stated that it is right to the entitlement of the child to the mother for the welfare of a child and according to the Special Leave Petition. But according to the statement of the child, she wanted to live with her father.

So, the finally Hon’ble Supreme Court concluded and directed the respondent to take his daughter to the Nagpur Bench Meditation Centre on a particular date which was decided by the court and the respondent should hand over his daughter to the petitioner at 10 a.m. in the presence of mediators. And there is also given direction to the mother of the child to return the child to the respondent at 6 p.m.

The court directed the mediators to observe the behavior and relationship of the child to her mother and father and subsequently submit a report to this court. So that on the behalf of the report the court can easily take the next step regarding the custody of the child and appoint a guardian. Because the court has the power to appoint a guardian for the child under section 7 and 17 of the Guardians and Wards Act, 1890.