Court/Judicial body: High Court of Malawi
Date: May 16, 2005 CRC
Provisions: General reference is made to the CRC, but no specific provision is cited.
Domestic provisions: Malawi Constitution § 23: Rights of children
Case summary
Background: The complainant, having previously been ordered to pay maintenance for his child’s expenses, sought to cancel the MK 20,000 monthly payment he was required to make and, instead, transfer his shares in a company so that the maintenance would be paid out of the proceeds. He argued that this would yield more than MK 20,000 per month for the child.
Issue and resolution: Child maintenance. The Court held that the best interests of the child would be served by continuing to receive a monthly payment, and adjusted the maintenance payment upward to MK 75,000.
Court reasoning: The Malawi Constitution and the Convention on the Protection of the Rights of the Child required the Court to make its decision based on the best interests of the child. Subjecting a child’s well-being to the success of a business venture is generally not in the best interests of the child, and here the value of the complainant’s shares was questionable: the business no longer operated and its ownership was contested. Considering the lifestyle to which the child had become accustomed, MK 75,000 was found to be the appropriate monthly maintenance payment.
Excerpt citing CRC and other relevant human rights Kapanda, J: The Petitioner wants this Court to make the interests of the infant to get maintenance dependent on the success of a partnership venture. I do not think that the suggestion by the Petitioner is in keeping with the provisions of Constitution and the Convention on the Protection of the Rights of the Child. As I understand it, Section 23 of the Constitution enjoins this Court to ensure that the interests of a child, no matter the circumstances of its birth, are protected under the law.
CRIN comments: CRIN believes this decision is in compliance with the CRC. Article 3 requires the best interests of the child to be a primary consideration in all actions concerning children. Article 27 highlights the right of the child to an adequate standard of living to be secured by the parents or caretakers and enforced by the State.
Citation: Kutty v. Kutty [2005] MWHC 27.
Link to full judgement: http://www.malawilii.org/mw/judgment/high-court-general-division/2005/27/