Child Custody : A Child is Not a Chattel

-By Atul Singh, Advocate

In most custody disputes, it is seen that the marital discord of the couple spills over into the future and the well-being of the child. As a parent, the desire and duty to ensure the well-being of the child transform into bitter contests where the parents often falsely assume that the child is their sole and absolute property to be claimed. The language of love as a parent is suddenly replaced by the language of possession of an estranged spouse. Not only is this assumption totally misconceived and legally unsound, but it also reflects that, due to self-serving agendas and the uncontrollable urge to settle scores with the spouse, people are blinded to the extent that they tend to forget that a child cannot be made to pay the price for their issues and incompatibilities. Numerous judgments have repeatedly and unequivocally held that a child is not the property of either parent, and that the welfare of the child will and must override all claims of parental rights.

The Hon’ble Supreme Court in its judgment passed in the year 2009, titled Gaurav Nagpal v. Sumedha Nagpal, quite clearly held and made this position clear that the child is not an inert object to be tossed from one parent to another, and the welfare of the child must be the sole and paramount consideration. The said judgment highlighted that the rights of the parents are irrelevant when weighed against the welfare of the child, which is the only factor to be considered in custody matters. A child is not a chattel or object but is a human being, and his future and upbringing cannot be seen from the narrow compass of the parent’s flawed desire to win or retain absolute custody.

In subsequent judgments by the Hon’ble Supreme Court and various High Courts, the said position has been reaffirmed. It must not be forgotten that children are not a pawns to be moved at the whim of either parent, and the endeavour should be to provide them consistency, emotional safety, and space to grow, free from the crossfire of parental disputes.

Only last year, the Hon’ble Bombay High Court reiterated this in unambiguous terms: “A child is not a chattel to be passed from one hand to another.” In these few words lies the essence of how such delicate issues are to be approached. One can only expect that parents fighting marital discords realise that a child is not a property that they can claim dominion upon, and that a custody petition is by no means an allocation of rights between adults, but the careful crafting of a life path for someone who is entirely dependent on them and came into existence out of the bond that the parties once shared. Depriving the child of parental love because of ego or aggression is the worst that you can do to him or her. Placing your issues or desires above the child’s well-being and overall growth quite clearly shows the level of concern one has for the welfare of the child.

PS: Parenthood is not ownership.