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What is Welfare of Child?

Child custody


Personally, this is one of the most difficult post to write. Child custody battles amongst the warring couple impact child the most. I have personally fought a bitter battle for the custody of my minor child and I can tell you from experience that no judgments, no precedents, no love, affection, 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. What they generally forget is 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.”

There are multiple laws that govern the child custody and visitation in India. A person can seek custody under Guardian and Wards Act, Religious Minority and Guardianship Act, Divorce Proceedings, Proceedings under Protection of Women from Domestic Violence Act. Various acts stipulate that father is the natural guardian of the child. Also, same acts say that the custody of minor 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 and 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. In fact, it went to state that categorically “We make it clear that we do not subscribe to the general observation and comments made by the High Court in favour of mother as parent to be always preferable to the father to retain custody of the child.” This said, mostly the cases are subject to the individual discretion of the Guardianship Judge, which is mostly a District Judge or a Family Court Judge. Mostly petitions are made on grounds available in statute and how a warring father can protect “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 has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh as well as its physical well-being {}. So what does this vague looking words “Welfare of the Child” or “Best Interests of the Child” mean? Generally speaking it means the custody should be with such parent who can take care of the child’s happiness, mental and emotional health, educational needs, security, and medical needs if they exist and so on. 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.

Though mostly it is the combination of all these factors that is taken in account. But sometimes, one particular aspects 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. In a sensitive matter like child custody no single factor can be taken to be decisive. 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 normal concepts of family and marriage. The basic unit of society is the family and that marriage creates the most important relation in life, which influences morality and civilization of people, than any other institution. During infancy and impressionable age, the care and warmth of both the parents are required for the welfare of the child {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 own 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.

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  1. Phalguna September 19, 2017 Reply

    I have kid aged 4.6years old wife is mentally retarded after having kid came to know.i even submitted x.rox in the child Custody mil playing big drama demands 40lakhs.what should be my strategy.plz suzzest.@9866700814.

    • Shonee Kapoor September 22, 2017 Reply

      Too less information to give any advise.

  2. सुनील कुमार April 28, 2017 Reply

    सर आपकी पोस्ट बहुत अच्छी होती है
    मैंने अपने 3 साल के बच्चे की विजिटिंग मांगी है
    मुझे crt में क्या बोलना चाहिए। तरीका बताये

  3. Space Interior April 16, 2017 Reply

    Nice comments its very useful information

    • Shonee Kapoor May 18, 2017 Reply

      Thanks Buddy. Hope this would help many fathers understand the concept.

  4. Anmol April 14, 2017 Reply

    Dear Mr Kapoor,
    On the guidelines as provided in your article, I am fighting my case for custody of my child keeping child welfare as Paramount concern. I have submitted a copy of Report no 257 with the court which has advocated a number of reforms in present act.
    Once again I am thankful for the correct guidance.


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