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2018 DIGILAW 275 (KER)

Sachin Narayanan Pillai v. State of Kerala

2018-03-21

ANTONY DOMINIC, DAMA SESHADRI NAIDU

body2018
JUDGMENT : ANTONY DOMINIC, J. 1. The petitioners are estranged husbands and are contestants in issues related to custody of children in cases pending before the Family Courts with their respective wives as the opposite parties. According to the petitioners, they often face with adverse orders in matters of their visitorial rights, interim custody of the ward, guardianship and such other issues involving their children in the proceedings before the Family Courts. The grievance of the petitioners is that orders passed by the Family Courts lacks objective assessment based on any scientific criteria and is often passed purely on the subjective satisfaction of the Judges. It is stated that though ‘interest of the child’ is often stated to be the primary concern of the Court, the interest of the child quite often becomes a casualty. It is in this background the petitioners have approached this Court with this petition filed as a Public Interest Litigation with the following two prayers: “(i) Issue a writ of mandamus commanding the 1st respondent to consider Ext.P1 and issue orders providing guidelines for objective assessment in a scientific manner for the court and other concerned authorities to decide the issues relating to the custody of children in the disputes arising between the estranged parents either in the pattern of Ext.P2 or on any other better pattern than Ext.P2 expeditiously or within such time as may be found reasonable by this Hon’ble Court. (ii) Issue a direction directing the 2nd respondent to incorporate Ext.P2 guidelines in the Rules framed by this Hon’ble Court in exercise of Article 227 of the Constitution of India and Section 50 of the Guardians and Wards Act, so that the subjective satisfaction of the adjudicative machinery is replaced by a objective assessment with scientific criteria to determine the best interest of the child in matters involving the custody of the children, visitorial right, guardianship etc., in the disputes pending before the family courts and other courts” 2. We heard the Counsel for the petitioners and the learned State Attorney appearing for the 1st respondent. 3. We heard the Counsel for the petitioners and the learned State Attorney appearing for the 1st respondent. 3. While the learned Counsel for the petitioners reiterated the aforesaid contentions and impressed upon the need for laying down scientific guidelines for an objective assessment of the welfare of the child, which should be of prime consideration in a dispute between the parents involving issues relating to custody of the child, the learned State Attorney contended that such issues have to be decided applying discretionary powers of the concerned Courts. According to him, the discretionary power so vested is to be exercised by the Court, with the welfare of the child in the forefront. It is stated that if any one of the litigants has a grievance that such a power has been exercised on subjective assessment by the Judge concerned or that the welfare of the child has become a casualty, such an order should be corrected in appropriate proceedings before a superior forum. 4. The law is settled that in a case where custody of a minor child becomes the subject matter of the dispute between the warring parents, the Court is required to decide the issue keeping the welfare of the child in the forefront. It has also been held by the Apex Court on several occasions that in disputes of such nature, the decision has to be taken by the Court not going entirely by the legal rights of the parties, but on the aforesaid criteria. Such is the law governing decision on a dispute concerning custody of the child. The decision has to be taken by the Court concerned appreciating the entire issue. Exercise of such a discretionary power by a Court cannot be curtailed by issuing any guidelines, as is sought by the petitioners. On the other hand, if at all the legislature is satisfied that this exercise of power has to be regulated by any statutory yardstick, it is for the legislature to step in and enact any appropriate law as it may be competent to do so. 5. On the other hand, if at all the legislature is satisfied that this exercise of power has to be regulated by any statutory yardstick, it is for the legislature to step in and enact any appropriate law as it may be competent to do so. 5. In such circumstances, we are not persuaded to think that the prayer sought by the petitioners requiring the 1st respondent to consider Ext.P1 and issue orders providing guidelines for objective assessment in a scientific manner for the Court or other concerned authorities to decide issues relating to the custody of children in disputes arising between estranged parents, can be granted. Similar is the request of the petitioners for directing the 2nd respondent to frame such Rules in exercise of its powers under S.50 of the Guardians and Wards Act, 1890. The Writ Petition is dismissed.