Burden of proof not on mother in case of interim custody of child

Division bench of the Supreme Court comprising Vikramajit Sen and C. Nagappan, JJ while considering an interesting case dealing with the issue of an interim custody of a minor child, ordered interim custody of the child to the Mother.

While dealing with the instant case, the apex court considered the provisions of Guardians and Wards Act, 1890, Hindu Minority and Guardianship Act, 1956 and Juvenile Justice (Care & Protection) Act, 2000 and in detail explained the concept of guardianship under Indian legal system.

After giving due consideration to above mentioned statutes, court ruled that, mother is the best suited guardian for the custody of children below the age of five years, an in all such cases, where the dispute is on the guardianship of an infant below the age of five years, then the focal point of consideration shall be given to the welfare of the child.

In the present case, the father of the child initiated legal proceedings alleging that, due to the bi-polar disorder, the mother is not fit for the custody of the child. However, apex court rejected such contention and set aside lower court’s judgment imposing the onus on mother to establish the sustainability of granting interim custody of the child, and further observed that, onus is on the father to prove that, it is not in the welfare of the infant child to be placed in the custody of mother and that, the wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.

Read full judgement on Roxxan Sharma v. Arun Sharma (17-02-2015, SC)

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