New Delhi: The Supreme Court has granted the custody of a teenage girl to her aunt, by setting aside the Orissa High Court order, which handed over her custody to her biological father, saying that “she cannot be treated as a "chattel" at the age of 14 years," and “stability of the child is also of paramount consideration”. The apex court noted that the girl has not ever lived with her father since birth and it is the welfare of the child and not the personal law or the statute, which has paramount consideration.
A bench comprising justices CT Ravikumar and Rajesh Bindal said, “Keeping in view her age at present, she is capable of forming an opinion in that regard. She was quite categoric in that regard when we interacted with her”. “She cannot be treated as a "chattel" at the age of 14 years to hand over her custody to respondent No.2 (father) where she has not lived ever since her birth. Stability of the child is also of paramount consideration”, said the bench, in its judgment delivered on March 4.
The apex court stressed that it is the welfare of the child and not the personal law or the statute, which has paramount consideration when the parties are fighting. “This court has consistently held that welfare of the child is of paramount consideration and not personal law and statute”, said the bench, noting the girl wanted to stay with her paternal aunt's family.
The apex court was hearing an appeal against a Orissa High Court order, which had taken away the 14-year-old from the custody of her aunt's family on the ground that the aunt had biological children. The High Court had acted on a habeas corpus petition filed by the biological father. Child’s aunt moved the apex court against the High Court order.
The judges interacted with the child, the appellants (aunt and her family) and respondent No. 2 (father) individually in the chamber. “We found the child to be quite intelligent, who could understand her welfare. She categorically stated that she is happy with the family where she has been brought up. She has two cousins and she is having cordial relations with them. She does not wish to be destabilised”, said the bench.
The bench noted that the fact that the aunt, when custody of the child was handed over to her, was unmarried and is now married having two children will also not be a deterrent for this court to come to the conclusion that best interest of the child still remains with her. “As the child is living with her ever since she was 3-4 months old and is now about 14 years of age having no doubt in her mind that she wishes to live with them….. we find that the welfare of the child lies with her custody with the appellants and respondent No 10. This is coupled with the fact that even she also wishes to live there”, said the bench.
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