A child’s performance in exams while staying with a parent would have a major bearing on the outcome of the legal battle between couples for their custody, the Supreme Courthas said.
Remarkable improvement in two children’s grades while in their mother’s interim custody, compared with failure in exams during their stay with their father, convinced a bench of Justice A K Sikri and Justice Ashok Bhushan to award their custody to the mother, setting aside a Bombay high court order in the father’s favour.
After being married for over 15 years, the woman had walked out of her matrimonial home, alleging mental and physical cruelty. The couple’s children — a boy aged 14 at the time and a girl of 10 — remained with the father.
The woman got interim maintenance from her husband, but a trial court allowed the father custody as the children were in boarding school.
There is some dispute as to how the children came in the custody of the mother. The husband claimed she did not return the children after taking them out during a court-permitted visitation period.
The woman said her husband, without any court order, had handed over custody to her as the son had “miserably failed in his Class 9 exams and he wanted her to teach him so that he did not waste a year”. When the couple first moved court, the magistrate interacted with the children and granted custody to the mother. The sessions court rejected the husband’s appeal. But the HC, on February 17 last year, directed the woman to hand over custody to their father. She appealed against the order in the SC. Justice Sikri, writing the judgment, said though the HC correctly discussed the ‘welfare principle’, it gave no reasons as to how the principle weighed in favour of the father in the given facts and circumstances of this case.
“After the children came to stay with the mother… the son’s academic performance improved significantly. He is getting very high grades… In fact, academic performance of the daughter has also gone up. This factor, though noticed by the HC, has been brushed aside with the observation that if the children were not doing well earlier, blame cannot be put on the father as it could be the result of the disputes between the parents,” said the bench. “In the process, what is ignored is that, in spite of the dispute still existing, the academic performance of the children, while in their mother’s custody, has gone up tremendously,” it added.