Summary
In this custody dispute, the child had lived with the appellants and respondent No. 10 since infancy and told the Court she wished to remain with them. Considering her welfare, stability and expressed preference, the Court set aside the High Court’s direction to transfer custody to her biological father.
Issues
- Where did the child’s welfare lie, considering her long-standing placement, stability and expressed preference?
- Did the dispute concern appointment of a guardian or only custody?
Provisions considered
- Section 19, Guardians and Wards Act, 1890The Court distinguished guardianship from custody. Section 19 concerns appointment of a guardian where the father is living and not unfit; the present case involved custody only, and guardianship was not claimed. (¶¶ 9, 11)
Held
- In a custody dispute, the child’s welfare is paramount; the court considers stability and, if the child can form an intelligent preference, gives that preference due weight while deciding what best serves the child. (¶¶ 13, 16)
- On this record, the child had lived with the appellants and respondent No. 10 since infancy, was settled with their family, and clearly wished to remain there. Her welfare and stability therefore favored continuing custody with them rather than transferring her to her biological father. (¶¶ 9, 17, 19, 20)
- The case concerned custody only; adoption and guardianship were not claimed or decided. The Court expected the appellants to adhere to their assurances made during the hearing. (¶¶ 9, 20, 21)
Result
Appeal allowed; the High Court’s custody order was set aside and the father’s writ petition for custody dismissed. The appellants were expected to adhere to their assurances recorded during the hearing.