Hearing a child custody case recently, the Supreme Court held that these cases could not be decided “solely” by interpreting legal provisions. It even laid out that while dealing with such cases a court “is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents”.
“It is a humane problem and is required to be solved with human touch,” observed a Bench headed by Justice C K Thakker. The Bench, which also comprised Justice D K Jain, noted that in selecting a guardian, the court exercises parens patriae and is expected, and indeed bound to give due weight to a child’s comfort, contentment, health, education, intellectual development and favourable surroundings. The Bench even asked courts to consider “moral and ethical values” which, it felt, “cannot be ignored” while deciding as to who should get the custody rights. According to the apex court, “they are equally, even more important, essential and indispensable considerations”. The court made these observations while dealing with a petition filed by Nil Ratan Kundu and his wife, who opposed the granting of custody of their six-year-old grandson to be their son-in-law. They urged the court to take into account the “preference” of the child as well. “Normally, in custody cases, wishes of the minor child should be ascertained by the court before deciding as to whom