Welfare of Child Concept in India | Shonee Kapoor

I find this one of the most challenging posts to write. Child custody battles amongst the warring couples impact the child the most. I have personally fought a bitter struggle for the custody of my minor child, and I can tell you from experience that no judgments, precedents, love, affection, or money matters when it comes to the custody of children in India. It practically becomes a thermo-nuclear war between the warring parents rather than a child custody suit, with warring spouses using every trick in the book, from character assassination to physical and mental incapacity of the other spouse. They generally forget that a divorce can sever ties between spouses, but they would always remain parents to their child/children.

The general principle governing the award of custody of a minor is succinctly stated in the following words in Halsbury’s Laws of England, Fourth Edition, Vol. 24, Article 511 at page 217: “Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor’s welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father’s claim in respect of that custody or upbringing is superior to that of the mother, or the mother’s claim is superior to that of the father.”

In the American Jurisprudence, Vol. 39, Second Edition, Para 148 at pages 280-281, the same principle is enunciated in the following words: “….. a court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after careful consideration of the facts, leave it in such custody as its welfare at the time appears to require.”

Multiple laws govern child custody and visitation in India. A person can seek custody under the Guardian and Wards Act, Religious Minority and Guardianship Act, Divorce Proceedings, and Proceedings under the Protection of Women from Domestic Violence Act. Various acts stipulate that the father is the natural guardian of the child. Also, the same acts say that the custody of minors till a specific age should be with the mother. These factors are now considered less important, and a new concept, “Welfare of the Child” or “Best Interests of the Child”, has become the cornerstone in deciding child custody. Jurisdiction in child custody matters is decided by the place where the minor “ordinarily” resides. An application for guardianship can be made by a person desirous of being or claiming to be the guardian of the minor or any relative or friend of the minor.

The Apex court has been consistent in its view that in cases related to custody of child, ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.” In subsequent judgments, it has also held that “no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor”. It also dismissed the argument that mother is always preferable to a father for deciding child custody issues. It went on to state categorically, “We make it clear that we do not subscribe to the general observation and comments made by the High Court in favour of the mother as a parent to be always preferable to the father to retain custody of the child.” This said, most cases are subject to the Guardianship Judge’s individual discretion, primarily a District Judge or a Family Court Judge. Mostly, petitions are made on grounds available in statute, and how a warring father can protect the “Welfare of the Child” or promote the “Best Interests of the Child” is missing from the application/petition.

The word “welfare” used in Section 13 of the Act must be construed literally and taken in its broadest sense. The moral and ethical welfare of the child must also be weighed, as well as its physical well-being {dalip-singh-vs-suman-devi-and-another}. So what do these vague-looking words “Welfare of the Child” or “Best Interests of the Child” mean? Generally speaking, custody should be with such a parent who can care for the child’s happiness, mental and emotional health, educational needs, security, and medical needs, if they exist. A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors, which is of paramount importance.

Some factors that are taken into account by the courts are:

• Wishes of the child; when the child is of intelligible age.
• Age of the child (Very young children are normally given to mother).
• Gender of the child; it becomes important in case of female child and when father does not have any female in his house.
• Medical condition of the child; if any.
• Religious considerations.
• Cultural considerations.
• Stability and consistency in the affairs and routines of children.
• Stability in home environment/ profession/ job etc.
• Who has the custody of the siblings, if any.
• Any past conduct which precludes a person from having custody (This can be any past conviction or proven track record of violence)
• Any mental ailments of any of the parties.
• Education, financial position of the parties.
• Any evidence of alcohol/ substance abuse by any of the parties.

A combination of all these factors is considered. But sometimes, one particular aspect overweighs all other parameters. It is a settled principle that custody orders, by their nature, can never be final; however, before a change is made, it must be proved to be in the paramount interest of the children. No single factor can be considered decisive in a sensitive matter like child custody. Neither affluence nor capacity to provide comfortable living should cloud the consideration by the Court. {R.V. Srinath Prasad v. Nandamuri Jayakrishna}. No decision by any Court can restore the broken home or give a child the care and protection of both dutiful parents. No Court welcomes such problems or feels at ease in deciding them. But a decision there must be, and it cannot be one repugnant to standard concepts of family and marriage. The basic unit of society is the family, and marriage creates the most important relation in life, which influences the morality and civilization of people than any other institution. During infancy and impressionable age, both parents’ care and warmth are required for the child’s welfare {Sumedha Nagpal v. State of Delhi and Others}.

According to the 257th Report submitted by the Law Commission, both the husband and wife are using the children as “pawns to strike their bargains”, and hence, it has recommended changes in the existing law by inserting a separate chapter on Shared Parenting, Visitation, and access to non-custodial parent keeping in mind the best interests of the child.