A child’s welfare, not the mother’s income, governs custody decisions.

The husband petitioned under Section 10 of the Guardians and Wards Act, 1890, seeking custody of the parties’ minor son, born on 21 October 2015.

The Family Court, Raichur, allowed the petition on 5 November 2022, relying in part on the mother’s lack of employment and income.

The mother appealed, contending that the child was living with the father’s sister at Solapur while the father resided in Pune, and that the Family Court had not properly considered the child’s welfare.

The High Court considered the parties’ evidence, including the father’s admission that the child stayed with his sister.

1. Whether the Family Court’s order granting the father custody of the minor child was arbitrary or erroneous for failing to properly assess the child’s welfare and the evidence.

2. What order or decree should follow from the Court’s determination.

Under the Guardians and Wards Act, 1890, the child’s welfare is the paramount consideration in determining custody.

The Court relied on Rohith Thammana Gowda v. State of Karnataka (Civil Appeal No. 4987/2022, decided 29 July 2022), which distinguishes a child’s wish or desire from the question of what is in the child’s best interest and directs courts to decide custody by reference to the child’s welfare, absent very serious and proven conduct rendering a parent unworthy of custody.

The appeal was brought under Sections 47-A and 47-B of the Act.

The father admitted that the child was not living with him but with his sister in Solapur, while he resided in Pune.

The High Court considered that circumstance relevant to the child’s welfare and found that the father’s decision to leave the child with his sister raised doubt about his asserted interest in having custody.

It also observed that the father had not alleged that the mother failed to care for the child, and that the Family Court had improperly relied on her lack of income without adequately considering the welfare question.

Applying the paramount-welfare principle, the Court concluded that the Family Court had erred in granting custody to the father.

The High Court allowed the appeal, set aside the Family Court’s order dated 5 November 2022, and dismissed G&WC No. 13 of 2019.