Referring to a number of precedents, the Court held that welfare of the child was of paramount consideration for determining who gets custody. Keeping this in mind, and the fact that the child had earlier expressed that she wanted to live with her mother, the Court held,
“On attaining puberty she may be more frank with her mother and may need her support and the controlling consideration is only the welfare of the child should prevail. It is not the negative test that the father is not unfit or disqualified to have the custody but applying the positive test we are of the opinion that custody would be in the welfare of the minor would be much more with the mother.”
The Court also called for the need to not treat children as commodities in such cases, opining,
“A child being not a property or commodity and the issue relating to the custody of minor and tender aged children have to be handled with love, affection, sentiments and by applying human touch to the problem. Therefore, considering the same and as per the desire of the child, we deem it appropriate that the child would be better in the custody of her mother.”
Source: Barandbench
