Case Note & Summary
The case involves two cross-appeals arising from a custody dispute between the mother (Smt. Kiran Ajit Lakhani) and the father (Shri Ajit Hariram Lakhani) over their child Girisha. The mother had filed a petition for custody of the child, which was dismissed by the 4th Additional District Judge, Thane on 10.05.2002. The trial court granted access to the mother during holidays and school vacations. The mother appealed against this dismissal in First Appeal No.692 of 2003. By the time the appeal came up for hearing, the child had attained the age of 13 years. The mother relied on the Supreme Court judgment in Rosy Jacob v. Jacob A. Chakramakkal (AIR 1973 SC 2090), specifically paragraph 16, to argue that the earlier ground of tender age no longer held good and that custody should be given to her. The father also filed an appeal (First Appeal No.1273 of 2002) against the access order, but the judgment does not detail his arguments. The court heard both appeals together. The court noted that the child had been in the father's custody since the dismissal of the mother's petition and that the child, now 13 years old, expressed a desire to stay with the father. The court held that the child's welfare is the paramount consideration and that the child's preference, being of sufficient age, must be given due weight. The court found no reason to interfere with the trial court's order and dismissed the mother's appeal. The father's appeal was also dismissed as the access granted to the mother was considered reasonable. The court emphasized that the child's welfare is the overriding factor and that the mother's claim based on tender age was no longer applicable given the child's current age and expressed wishes.
Headnote
A) Family Law - Child Custody - Welfare of Child - Guardians and Wards Act, 1890 - The court considered the mother's appeal for custody of her 13-year-old child. The child had been in father's custody since the dismissal of mother's petition in 2002. The court held that the child's welfare is the paramount consideration and that the child, being of sufficient age, expressed a desire to stay with the father. The court dismissed the mother's appeal, finding no reason to disturb the existing custody arrangement. (Paras 1-3)
Issue of Consideration
Whether the mother is entitled to custody of the child Girisha who has attained the age of 13 years, based on the principle in Rosy Jacob v. Jacob A. Chakramakkal that the child's welfare is paramount and the child's wishes should be considered.
Final Decision
Both appeals dismissed. The mother's appeal for custody is dismissed, and the father's appeal against access is also dismissed. The trial court's order granting access to the mother during holidays and school vacations is upheld.
Law Points
- Child welfare paramount
- child's preference at age 13
- custody not to be changed merely due to tender age
- Rosy Jacob v. Jacob A. Chakramakkal principle
