The Madras High Court has set aside orders dismissing a mother’s petitions for custody of her two children and directed a Puducherry family court to personally hear the children and both parents before deciding the dispute.
Justice N. Anand Venkatesh said courts handling child custody petitions must determine the welfare of the children as their primary concern and cannot approach such disputes in the same manner as property litigation. The court’s observations came while hearing petitions filed by a woman from Puducherry against orders passed by the Puducherry Family Court.
The woman married a man from Virudhunagar in 2019, and the couple has two children. Following differences between the spouses, the children remained in their father’s care. The mother filed a petition seeking permanent custody and a separate interim application asking that the children be handed over to her immediately while the main petition was pending.
The Puducherry Family Court rejected both applications in September, holding that handing the children over to their mother would not be in their welfare. The court relied on a report from a child welfare committee while reaching its decision.
The High Court said that when courts examine custody requests in divorce or other matrimonial proceedings, they must adopt the position of a parent while assessing the children’s interests. It said the court has a duty to call the children, understand their state of mind and hear the parents before reaching a conclusion.
Justice Venkatesh said courts may rely on other reports to confirm their assessment, but such reports cannot replace the court’s direct interaction with the children and their parents. The High Court described the Puducherry court’s reliance solely on the committee report, along with selected precedents, as legally impermissible.
The ruling does not grant permanent custody to the mother. Instead, it cancels the Puducherry Family Court’s orders and requires that court to call the children and both parents, hear them in accordance with law and pass fresh orders. The High Court also directed that courts follow this approach in similar child custody cases by speaking directly with children and their parents before making custody decisions.
