Uttarakhand HC: Income is irrelevant for guardianship

An appeal was filed by a female before the Uttarakhand High Court to claim the custody of her minor son. In the instant matter, the wife was undergoing depression and had no source of earning. Considering this, the Additional Family Court ruled in the favour of husband and granted custody of the child to him on the grounds that the female was financially not capable of taking care of the child. This order of the Additional Family Court was challenged before the Uttarakhand High Court, where the court held that even the poorest of poor have the right to procure and shower love on the child.

The HC asserted that the Family Court has erred in its ruling by passing the order by only relying on the grounds mentioned in Section 125 of Cr.PC and not according to any other reason for granting the custody of the child to the husband.

The Court observed, “ The learned Family Court ought not to have derived the aforesaid fact and findings of Section 125 Cr.P.C. order while considering the parameters of the welfare of the child that even otherwise under the law, the best savior of the child would be a mother herself.”

In the instant matter the court was posed with the question whether the findings recorded in the proceedings under Section 125 Cr. P. C. for granting maintenance to the wife, children or parents, could be taken into consideration to lay down the foundation for considering the application under Section 10 read with Section 25 of the Guardians and Wards Act, 1890.

The HC answered in negative and held that “ income of either of the party in matrimony is irrelevant for considering the propriety of guardianship, as even poorest of poor have right to procure child and shower his or her love and affection.This Court feels that for grooming of a child, apart from money, much more is required i.e. emotional and caring strength of mother to a minor child for a better grooming which could only be granted by mother, with whom, the child was initially residing.”

The Court also ordered the husband to pay a sum of Rs. 4,000 every month, for the maintenance and education of the minor son