Custody judgments must center on the child's welfare, disregarding parental moral conduct unless it adversely affects the child's interest.

J U D G M E N T

A.Muhamed Mustaque, J.

A Mother of two children are before us. The eldest child namely, Gouri Nandan now attained majority. The younger child namely, Meera Nandan is still a minor. The court, noting the fact that the mother has eloped with one Sri.Najeem, declined custody to the mother. However, the mother was granted custody from 10 a.m on every Second Saturday till 4 p.m on the following Sunday on condition that she shall not take the child anywhere.

2. Care and love have to be a factor while bestowing the focus of an enquiry qua the welfare of the child. Mother's relationship with another person and consequent eloping will not stand in the way of the mother offering her love and care to the child. Moral judgment of a person on the character not necessarily reflect on that person to take care of her own child. Social ethos, cultural factors etc. are created by men to govern themselves. How far these factors would have an impact to take care of the child is a question to be considered by the Family Court while conducting an enquiry as to the welfare of the child. A spouse who might have eloped with another may be in a better position to take care of the child than the other spouse. The welfare of the child itself alludes to an enquiry related to best interest of the child. A comparative valuation of both spouse to take care of the child sometimes may be warranted for proper conclusion in such matters. The court also has to attempt in all possible way to allow a joint parental responsibility of minor child as well.

3. A Division Bench of this Court in 'X' and another vs. Y (2022 (1) KLT 310) adverted to requirement of the factors to be enquired in such circumstances. It is appropriate to refer paragraphs 9, 12 to 16 of the said judgment:

Paragraph 9 reads thus:

“9. How does a Court determine the best interest or welfare of a child? What are the parameters to be considered? The Court is likely to fall in line to adjudicate such dispute with state of mind of the adjudicator. The adjudicator, seldom realises the importance of the requirement to adhere to the neutral value, in such adjudication process, without allowing his or her own personal notion being permeated the process. Over the years, the line of decisions of this Court and the Apex Court emphasized principles of welfare of a child. In Vivek Singh v. Romani Singh (2017) 3 SCC 231 , the Apex Court explained twin objectives behind the principles of welfare. First with reference to the environment, the child grows and develops. The second, relatable to welfare principle ensuring optimal growth of the child. In Lahari Sakhamuri v. Sobhan Kodali [ (2019) 7 SCC 311 ], the Apex Court delineated crucial factors to gauge the welfare of the children, relatable to the parents:

(1) maturity and judgment;

(2) mental stability;

(3) ability to provide access to schools;

(4) moral character;

(5) ability to provide continuing involvement in the community;

(6) financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parent as an individual”.

Paragraphs 12 to 16 read thus:

12. The meaning assigned to the best interest of the child under the Juvenile Justice Act is evolved through various international conventions. In 1924 Geneva Declaration of the Rights of the Child, it was emphasized that “The child must be given the means requisite for its normal development, both materially and spiritually;”. Similarly, in 1959 Declaration of the Rights of the Child, it was declared in Principle 2 that - “The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity.”

13. The inquiry and adjudication in custody matters primarily must focus on giving joint custody. The joint parental care must be the norm and, cus