The court said that the mother was "absolutely fit" to take care of the children.
Financial means is not the only ground to decide the custody of a child to a parent, a Delhi court has said while awarding interim custody of two children to their mother.
Metropolitan Magistrate Sana Khan was hearing a plea filed by a woman under the provision of the Protection of Women from Domestic Violence (PWDV) Act seeking custody of her two children.
The woman sought custody of her five-year-old daughter and two-year-old on the grounds of being their mother and natural guardian, while her husband opposed the application, saying he was a doting father, capable of providing the requisite comforts to the children, the court noted.
It said, "This court is cognisant of the legal proposition that while deciding custody issues, the paramount welfare of the minor child involved has to be gauged and taken care of and the court has to ensure the child's physical, mental, psychological and financial well-being."
Relief under provisions of the PWDV Act "must be guarded by the principles of paramount welfare theory in favour of the child who in almost all matrimonial litigations remains least represented", the court added.
It said while deciding the custody of the children, the court has to look into various factors like their age, gender, preference and the suitability of the parties to ensure their maximum welfare.
"Unarguably, respondent no 1 (father) is a man of means and capable of providing the best education, healthcare and lifestyle to his children. It is also undisputed that the financial capacity of a party is a compelling consideration, however, sadly financial means is not the only ground to decide the custody of the children," the court said.
It said that the father was a commercial pilot in a foreign country, admittedly away for work for 10-12 days a month, and despite hiring domestic help and calling his parents to the country to take care of the children, these measures could not be substituted for the mother's desire to provide care, love and affection to her children.
It said that both parties had an equally good claim over the children but considering the tender age of the children, the odds tilted more in the complainant's or mother's favour.
"This court is of the view that if children are denied their mother's company in such crucial and formative years of their lives, it would be detrimental to their overall development and well-being and there is nothing on record which shows that complainant is unfit to have custody of the children," the magistrate said.
"Hence, I am of the view that children being given to their mother, who is yearning for her reunion with the children, would only help the children to grow and develop physically, physiologically and mentally. Merely the fact that the complainant is dependent upon her parents for subsistence is no grounds to deny her the custody of her children," she added.
The court said that the mother was "absolutely fit" to take care of the children and that their welfare would be ensured if she was granted interim custody.
It said, "Accordingly, respondent no. 1 is directed to hand over the custody of the children to the complainant within three weeks from the date of this order. The complainant will have interim custody of the children till the final disposal of the case, or their permanent custody is decided by a court of competent jurisdiction, whichever is earlier."
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