In custody disputes, the welfare of the child is the paramount consideration, overriding the statutory rights of parents.

Judgment

Mrs. Archana Puri, J.

The petitioner has invoked the jurisdiction of this Court under Article 226/227 of the Constitution of India, thereby seeking quashing/modification of the order dated 01.11.2018 (Annexure P-10) for grant of appropriate visitation rights of the minor and also for the interim custody to the petitioner and his parents.

2. Initially, petitioner-XXX had filed a petition under Section 25 of the Guardians and Wards Act for seeking custody of the minor daughter. Therein, an application for interim custody was disposed of vide impugned order, wherein, it was held that no ground is made out for handing over the custody of the minor child to the petitioner, but however, visitation rights were granted to the petitioner-father.

3. Feeling aggrieved by the order passed by the Court below for not handing over the custody of the minor child to the father and also granting only visitation rights, XXX has filed the present revision petition.

4. In pursuance of notice issued, respondent made appearance.

5. Learned counsel for the parties heard.

6. The facts, as culled from the paper-book, are as follows:-

7. That, marriage between the petitioner and respondent was solemnized on 23.11.2008 and the girl child was born from their wedlock in the year 2012. However, matrimonial dispute arose between the parties, as a result whereof, the petitioner and the respondent parted ways and the girl child continued to be in the custody of the mother. Amidst the matrimonial discord, there is unfortunate dispute between the petitioner-husband and respondent-wife, with regard to handing over of the custody of the minor child.

8. In a custody tussle, the matter is to be decided, not on consideration of the legal rights of the parties, but on the sole and predominant criterion of what would be best to serve the interest and welfare of the child. The various provisions of the Guardians and Wards Act, makes it manifestly clear that the paramount consideration, is the welfare of the minor child and not the statutory rights of the parents.

9. What is ‘welfare of the child’ depends upon several factors. It has to be measured not only in terms of money and physical comfort, but also in view of the age of the child and the manner, in which, ‘needs’ can be fulfilled, more particularly, moral and ethical aspects of the shaping of the minor’s personality. The welfare of the child depends upon the facts and circumstances of each particular case. The legal right or the financial affluence is not decisive, but the welfare of the minor is decisive for the claim of the custody.

10. In a matter involving the question of custody of a child, it has to be borne in mind that the question ‘what is the wish/desire of the child’ is different and distinct from the question ‘what would be in the best interest of the child’. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to ‘what would be in the best interest of the child’ is a matter to be decided by the Court, while taking into account, all the relevant circumstances. When the couples are at loggerheads and want to part ways, they may level extreme allegations against each other, so as to depict the other unworthy, to have the custody of the child. In the circumstances, unless and until, there is proven bad conduct of one of the parent, which makes him/her unworthy to claim the custody of the child concerned, the question can and shall be decided, solely looking into the question as to, ‘what would be the best interest of the child concerned’.

11. A custody dispute involves human issues, which are always complex and complicated. There can never be a straight jacket formula, even to adjudicate the question of interim custody. However, it is fact dependent exercise to be conducted by the Courts in the backdrop of the welfare of the child, while observing how the child’s interest can be protected while custody being given to either parent.

12. In the pleadings, the