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C.K.THAKKER, D.K.JAIN
Nil Ratan Kundu – Appellant
Versus
Abhijit Kundu – Respondent
Question 1? What is welfare of the minor as the paramount consideration in custody disputes? Question 2? What is the appropriate procedure to ascertain a tender-aged child’s wishes in custody determinations? Question 3? What factors may disqualify a guardian or influence guardianship decisions under Guardians and Wards Act and Hindu Minority and Guardianship Act?
Key Points: - The welfare of the child is the paramount consideration in custody decisions, not parental rights. (!) (!) - Courts should consider the child’s wishes or intelligent preference where the child is old enough to form one, and may interview the child to ascertain preferences. (!) (!) (!) - Factors include age, sex, religion of the minor, the guardian’s character and capacity, nearness of kin, and any pending criminal proceedings or allegations against a guardian. (!) (!) (!) - The courts must exercise parens patriae jurisdiction with a humane, human-touch approach, applying welfare over formal legal rights. (!) (!) - Indian statutes (Guardians and Wards Act and Hindu Minority and Guardianship Act) codify welfare as a central criterion and allow considering minor’s wishes if capable. (!) (!) (!)
JUDGMENT
C.K. THAKKER, J. — 1. Leave granted.
2. The present appeal is filed against the judgment and order passed by the Additional District & Sessions Judge, Fast Track, 1st Court, Barasat on July 15, 2006 and confirmed by the High Court of Calcutta in F.M.A.T. No. 3185 of 2006 on December 7, 2007. By the impugned orders, both the Courts below directed handing over custody of minor child Antariksh Kundu to father-Abhijit Kundu, respondent herein.
Factual matrix
3. To understand the controversy in the appeal, it is appropriate if we narrate relevant facts of the case:
4. The appellants herein, (i) Nil Ratan Kundu and (ii) Smt. Kabita Kundu are maternal grand father and grand mother respectively of minor Antariksh, father and mother of deceased Mithu Kundu and father-in-law and mother-in-law of Abhijit Kundu-respondent herein. It is the case of the appellants that they had a daughter named Mithu whom they gave in marriage to Abhijit Kundu on August 8, 1995. The marriage was performed according to Hindu rites and ceremonies. Sufficient amount of dowry by way of money, ornaments and other articles was given to the respondent. According to the allegation of the appellants, however, t
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