A mother who was unable to meet her elder son for nearly 10 years has won a custody battle in the Allahabad High Court, which held that a parent cannot benefit from allegedly flouting court orders and preventing the other parent from meeting the child. Setting aside a family court order, the bench directed the father to hand over the 15-year-old boy to his mother within a month, ruling that the child’s welfare must take precedence over financial status or prolonged physical custody.Justices Saral Srivastava and Sudhanshu Chauhan were hearing an appeal filed by the mother against a July 23, 2024, order of the Azamgarh family court. The court examined the mother’s inability to meet her son despite visitation rights, the father’s conduct during the proceedings, and the evidence supporting his claim that the boy’s welfare was being adequately protected.“Welfare of the child is of paramount consideration while taking a decision regarding custody or other issues pertaining to a child. Every child has a right to proper health and education; and it is the primary duty of the parents to ensure that child gets proper education… The welfare of the minor would be better taken care of, if his custody is granted to his mother-appellant,” the bench held on October 26, setting aside the family court’s decision.The dispute began in April 2016, when the couple separated and the father took their elder son with him, leaving the mother at her parental home in Varanasi with their younger son. Years of matrimonial litigation followed, but the mother remained unable to meet her elder child.Mother denied access despite visitation orderThe couple married on February 19, 2007, and have two sons born in May 2011 and June 2013. The couple separated on April 3, 2016, when the father took the elder son with him. His divorce petition was dismissed on December 15, 2022, while the wife’s petition seeking restitution of conjugal rights was allowed on the same date. The high court noted that the husband did not bring his wife back to the matrimonial home despite the decree. Justices Saral Srivastava and Sudhanshu Chauhan said the child’s moral and ethical welfare must be weighed along with his physical well-being. (Image enhanced using AI)The family court granted the mother visitation rights in its July 23, 2024, order but refused to give her custody of the boy. The high court found that she had not been permitted to meet him despite those directions. It rejected the lower court’s reliance on the fact that the mother had not met her son for years, observing that she had not stayed away by choice but had allegedly been prevented from doing so.The bench also noted that the father had repeatedly failed to participate in the proceedings, did not appear before the mediation centre despite notice and left his address without providing a new one. The high court found that he had not entered the witness box for cross-examination and had not produced sufficient evidence to establish that the child’s welfare was being adequately protected.Story continues below this adThe family court had relied on his affidavit while deciding custody. The high court held that this was legally flawed because the mother had not been given an effective opportunity to challenge his statements through cross-examination. It emphasised that although family courts have flexibility in receiving evidence, they must still follow basic principles of fairness, proof and natural justice.The bench also considered the mother’s allegation that her husband had entered into another marriage while their marriage continued to subsist. It treated the alleged remarriage as one of several circumstances relevant to the child’s welfare, rather than as an automatic disqualification from custody.Financial dependence can’t decide custodyThe family court had relied on the mother’s lack of independent income and her dependence on her retired father while refusing her custody of the boy. The high court rejected this reasoning, holding that a parent’s financial resources cannot be the sole determining factor in a custody dispute.The court must consider the child’s overall welfare, including health, education, surroundings and moral well-being, it added. The bench also noted the mother’s submission that the father had not paid maintenance to her or their younger son who lived with her. It said this circumstance should have been considered while assessing the child’s welfare.Story continues below this adAllowing the appeal, the high court set aside the family court’s order and directed the father to hand over the child’s custody to his mother within one month. The bench granted the father visitation rights every Saturday from 3 pm to 5 pm at the District Legal Services Authority premises in Varanasi, recognising that his presence remained important for the child’s growth and development. Either parent may approach the family court to seek a change in the arrangement.