The paramount consideration in custody matters is the welfare of the child. The preference of the child to be with one of the parents should be the primary factor, as long as there is no disability preventing one of the parents from having custody. The child's right to grow under the care and protection of their biological parents is of utmost importance.

JUDGMENT :

A. Muhamed Mustaque, J.

This appeal arises from the judgment of the Family Court, Pathanamthitta, in a custody matter. The mother is the appellant and the respondent is the father. In the wedlock, a child was born on 10.02.2018. The respondent is employed in Bahrain. The appellant also joined the respondent in Bahrain. However, the appellant later returned to her home town in Kerala during the eighth month of pregnancy. The appellant filed a case for divorce and also a case for patrimony and maintenance. The case related to patrimony was compromised on 06.11.2021 and the decree was passed based on the compromise. As per the compromise, the minor child, namely, Ishan V. was given custody to the appellant/mother with a stipulation allowing the respondent/father to have visitorial rights during the vacation. However, it was further stipulated that the child custody to the mother was only till the child reaches the age of 6 years. The respondent/father was also allowed to have contact rights with his child. The appellant moved to New Zealand and now obtained residential status. Her brother and family are also settled in New Zealand. The present petition for declaration of guardianship and to take the child along with her to New Zealand is due to a change in circumstances. The child is with the parents of the appellant/mother. The respondent/father resisted the petition. According to him, the present petition is filed to violate the compromise decree entered between the parties and therefore the child cannot be taken to New Zealand.

2. The parties adduced evidence before the Family Court. Exts.A1 to A10 were marked on the appellant’s side. The appellant was also examined as PW1. Though the respondent/father was not examined, his power of attorney holder and other witnesses were examined on his side. Exts.B1 to B10 were also marked on his side.

3. The Family Court dismissed the petition and ordered to handover the minor child to the parents and sister of the respondent if the appellant is leaving for New Zealand.

4. The Family Court entered the following reasons for declining the request of the appellant :

i. There is no reason to change the condition in the compromise agreement.

ii. In March 2022, the appellant's father committed suicide while the appellant was residing in that house along with the minor child.

iii. The appellant went to New Zealand without informing the court as she was given the custody of the minor child based on the compromise decree.

iv. The child is comfortable with the parents and unmarried sister of the respondent.

v. The child is now studying in a reputed school.

5. On appreciation of pleadings and evidence and on perusal of the impugned judgment, we are sure that the Family Court had not adverted to the paramount consideration that is required in such matters. The Family Court apparently decided the matter as though it was deciding the rights and obligations of the individual parties before the court rather than focusing objectively on the welfare of the child. The welfare of the child is the paramount importance in matters relating to the custody of the child.

6. What is the paramount? Is it not depriving the child to be with the parent a consideration in such matters. In the absence of any disability that would deprive one of the parents from having custody, the preference of the child to be with one of the parents should be the paramount consideration to protect the welfare of the child. Admittedly, the respondent/father is in Bahrain. The Family Court assumed that grandparental custody should be preferred as against the parent's custody because of the geographical location of the parties. No doubt, if none of the parents can have custody, the grandparental custody can be preferred. Merely because there is a parental battle for custody, it cannot be said that one should remain locally forever without moving from the location for the purpose of custody of the child. The appellant relocated to New Zealand