When the custody of a minor is being decided between two parents, aspects like the welfare, education and day-to-day needs of the child must be given paramount importance by the court. This basis on which custody should be granted was outlined in the judgement passed by a single member bench of the High Court of Jammu and Kashmir consisting of Justice Vinod Chatterji Koul in the case of Sameera Begum v Khalil Mohammad Hajam [CFA No. 08/2018] pronounced on 22nd June 2021.
The appellant, Sameera Begum and respondent, Khalil Hajam got a divorce and a petition was filed before the District Court in Kupwara for the custody of their minor child under Guardian and Wards Act. The Distrcit judge ruled in favour of the child’s father who is the respondent in this case. As a result of this, an appeal was filed by the mother in the High Court of Jammu and Kashmir. The appellant contended that the trial court failed to consider the facts and circumstances of the case and that the minor’s best interests were ignored. It was also added that the minor should not be treated like some kind of property which is to be given custody.
Upon considering and discussing the various facts and witness statements produced by both sides, the court noted that upon getting divorced by the respondent, the appellant remarried and had three children from her third marriage. It was also noted that while the minor was in custody of the appellant, it was not the appellant herself but the child’s maternal grandfather who was looking after her. The court came to the conclusion that the appellant was unable to devote as much time with the minor due to her second marriage and that the child was better off with her father than her maternal grandfather.
Justice Vinod Chatterji Koul stated that “The Trial Court has rightly said that education and day-to-day needs of minor is of paramount importance, which can be fulfilled by respondent, more particularly when her mother (appellant herein) has remarried and is living with her second husband. The Trial Court has also correctly said that minor can only inherit property of her father and not that of her grandfather”. It was concluded that the judgement passed by the trial court took all necessary aspects into consideration and did not warrant any interference. Thus the appeal was dismissed by the High Court.
