Case Note & Summary
The petitioner, Shabana B S, wife of Kevin Joseph Selvadoray, filed writ petitions under Articles 226 and 227 of the Constitution of India challenging the order dated 22.04.2019 passed by the II Additional Family Court Judge, Bengaluru, in G & WC Case No.288/2018. The Family Court had rejected her applications (I.A.Nos.6 and 7) seeking interim custody of her minor child pending final disposal of the guardianship case. The petitioner, as the mother and natural guardian of the minor child, argued that she was entitled to interim custody under Section 6 of the Hindu Minority and Guardianship Act, 1956, and that the Family Court had erred in denying her custody without considering the welfare of the child. The respondent, Kevin Joseph Selvadoray, opposed the petitions, contending that the child's welfare required that custody remain with him. The High Court, after hearing both sides, held that the mother, being the natural guardian, is entitled to interim custody unless it is shown that her custody is detrimental to the child's welfare. The court found no such evidence and noted that the child was of tender age and required the mother's care. The court set aside the impugned order and granted interim custody of the minor child to the mother, subject to the final decision in the guardianship case. The court emphasized that the welfare of the child is paramount and that the mother's right as natural guardian should not be lightly disregarded.
Headnote
A) Family Law - Interim Custody - Natural Guardian - Section 6, Hindu Minority and Guardianship Act, 1956 - The mother, being the natural guardian of the minor child, is entitled to interim custody unless it is shown that her custody is detrimental to the welfare of the child. The Family Court's order rejecting interim custody was set aside as it failed to consider the mother's right as natural guardian and the welfare of the child. (Paras 4-6) B) Family Law - Welfare of Child - Paramount Consideration - Section 13, Hindu Minority and Guardianship Act, 1956; Section 17, Guardians and Wards Act, 1890 - The welfare of the minor child is the paramount consideration in custody matters. The court must consider the child's age, sex, religion, and the capacity of the parent to provide for the child's needs. In this case, the mother was found to be a fit person to have interim custody. (Paras 5-6)
Issue of Consideration
Whether the Family Court erred in rejecting the mother's application for interim custody of the minor child pending final disposal of the guardianship case.
Final Decision
The High Court allowed the writ petitions, set aside the impugned order dated 22.04.2019 passed by the II Additional Family Court Judge, Bengaluru, and granted interim custody of the minor child to the petitioner (mother) pending final disposal of G & WC Case No.288/2018.
Law Points
- Interim custody of minor child
- Natural guardian
- Welfare of child
- Hindu Minority and Guardianship Act
- 1956
- Section 6
- Section 13
- Guardians and Wards Act
- 1890
- Section 17
