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While the wellbeing of the child is of fundamental significance, it cannot be allowed for the child to live with a parent who is unable to instill in his kids a love for their biological mother is upheld by the Madras High Court in the case of X v X (A. Nos. 335 & 703 of 2021) through Justice Krishnan Ramasamy.

FACTS OF THE CASE

In this instance, the applicant and respondent were wed in 2009 and are parents to two kids. After that, there were matrimonial issues between the parties, and the respondent kept custody of the kids while harassing the wife and forcing her out of the marital house in 2021.

The applicant then submitted a number of petitions and applications asking for a divorce, child custody, visitation rights, and other things.

JUDGMENT

The court noted that despite several orders from this court granting the applicant visiting privileges in an effort to protect the children’s welfare from being impacted by their parents’ difficult and alienated relationship, the respondent has disobeyed those orders. In addition, the respondent even engaged in parental alienation by teaching the kids how to act and behave against the applicant’s interests and in accordance with the respondent. He even informed the kids about the court procedures, which made the older boy rebel against staying with his mother and ask her to drop the case she had brought against his dad.

The Court noted that a young child could not demand that his mother drop the lawsuit and set the condition that he would not visit his mother unless she did so without their being parental alienation. The Court further noted that the respondent is blaming the kids, claiming that they don’t want to go and live with the mom and that he can’t force them to do it because it’s out of his control.

Additionally, the Court orders make no mention of a specific role for the respondent to play in terms of persuading and handing the kids over to the applicant. This unequivocally establishes the respondent’s parental alienation. Additionally, his incapacity to counsel and influence the kids further demonstrates his incompetence and incapability to retain and keep custody of the kids.

The Court stated that while the wellbeing of the child is of fundamental significance, it cannot be allowed for the child to live with a parent who is unable to instill in his kids a love for their biological mother. Furthermore, the respondent’s refusal to allow the kids to visit their mother notwithstanding the court’s instructions is unfair on his or her side.

Furthermore, the Court noted that the defendant has been engaging in such child abuse without justification because children have a fundamental right and need for an affectionate and loving relationship with their parents and denying the abovementioned right would constitute to child abuse. The Court further held that although material comfort and financial security are important components of a child’s welfare, they should only be considered secondary factors to the stability and security, love and understanding, care and guidance, and warm and compassionate relationships that are necessary for the full development of the child’s own character, personality, and talents.

The Court further viewed that in cases involving child custody, the Court will prioritize the welfare of the children and determine which parent is best suited to care for the child by providing them with all necessary amenities and comforts; however, the Court cannot assess whether the child feels content with just one parent because, in the end, the child is the silent sufferer having lost the love and affection of a different parent. In light of this and the child’s welfare, the Court gave the mother, that is, the applicant temporary custody.

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JUDGEMENT REVIEWED BY NISHTHA GARHWAL

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