In a significant ruling, the Kerala High Court underscored that a minor child’s preference to live with one parent cannot singularly dictate custody outcomes. The primary concern must always be the child’s welfare. This ruling emerged from a petition filed by a mother residing in Canada, who sought custody of her 12-year-old son presently living with his father in Kerala.
The Bench, comprising Chief Justice Soumen Sen and Justice Syam Kumar VM, highlighted that while a child’s wishes are a factor to be considered, they cannot outweigh the overarching concern for the child’s welfare. The court stated, “The Court, while deciding the welfare of the child, is required to take into consideration the wishes of the child, but the welfare of the child being the paramount consideration, the same should be borne out from the facts and circumstances of each case. The mere wish of the child is not sufficient to give custody of the child to one parent over the other.”
The mother alleged that her estranged husband had failed to return their son to her after she visited India to see her ailing father. The court acknowledged the mother’s intentions in allowing her son to spend time with his father to foster a healthy relationship. However, it noted that the father did not return the child when the mother was preparing to return to Canada.
During the proceedings, the father’s attorney argued that the child expressed a desire to stay with him in Kerala, a claim the court scrutinized against the backdrop of previous arrangements. Since their separation in 2024, the child had been living with his mother in Canada and attending school there. The court observed that the child had not previously expressed a wish to stay with his father, nor had the father ever filed for custody in any court.
The judgment further stated, “Matured thinking is indeed necessary in such a situation to decide as to what will ensure the benefit of the child and his welfare. A child torn between his love and affection for both parents may not be in a position to take a conscious decision or express an intelligent preference.”
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The court took note of a ‘child support arrangement’ from January 2024, filed with the Canada Revenue Agency, wherein the father had relinquished custody, acknowledging the mother as the primary caregiver responsible for all expenses.
While acknowledging the potential for the child to have developed affection towards his father during his stay in Kerala, the court maintained that an extended stay might not serve the child’s best interests. Consequently, the court ordered the father to return the child to the mother, who was present in court and scheduled to fly back the following day. Furthermore, the father was granted the right to maintain contact with the child through video conferencing.
