Principle of child welfare
The child welfare principle focuses on two major goals:
- Ensuring the overall growth and development of the child, it focuses on the child’s best interest while dealing with custody related issues.
- In the public interest considering the children optimal growth. In Vivek v. Romani Singh[i], the court concluded that the child-centric human rights law has evolved and is emphasis on the overall development of child, who is the nation’s future, is in the public interest.
The Hindu Minorities and Guardianship Act, 1956, Section 13 deals with the ‘principle of child welfare’ about a child’s custody or appointment of a guardian to take care of the child and property. Such an appointment shall be made considering the child’s welfare and interest.
In Gaurav Nagpal v. Sumedha– The court held that child’s welfare is of the utmost importance and rest everything is secondary. The Court stated that a child’s wishes, happiness with the guardian, educational needs, health, physical comfort, are very important to consider.
In the case of Rosy Jacob v. Jacob A. Chakramakkal[ii], the court held that paramount consideration is the welfare of the child.
Factors to be considered for granting child custody
While granting child custody to a parent, the court considers the following aspects:
- A child’s age is a prime factor to determine to whom the custody should be given. If the child is young then usually a mother is appointed as the guardian. However, there is no set rule that if the child is minor then the custody shall be granted to the mother only. The Division Bench of the Bombay High Court comprising of Justices A.A. Sayed and P.D. Naik stated that it cannot be said that the father is unfit to look after the child. The child is suffering from medical issues and he has undergone surgeries. The father is a doctor and hence he would be in a better position to deal with the health condition of the child and take requisite steps in this regard[iii]”.
- A child’s gender is also considered by the court usually with a girl child the court takes into account that there should be a female in the house to take care of the child’s growing needs. In Mohan Kumar Rayana v. Komal Mohan Rayana[iv], the court granted the custody of a minor girl child to the mother considering that she needs the company of her mother for her overall development.
- Religious and Cultural considerationmostly the child’s guardianship/custody is given to a person of the same religious beliefs so that the child feels comfortable.
- Most importantly, guardianship is not given to a person having a civil or criminal record. The person who is taking a child’s custody should be free from any charge or criminal record. In the case of Neelam v. Mann Singh[v], the court granted the custody of the minor child to the grandparents where their father was dead and the mother was prosecuted under Section 306 of the Indian Penal Code (IPC) for abetment of her husband’s suicide.
- Financial Stability, the court considers that the guardian to whom the custody is granted should be finically stable to take care of the child’s needs. In Tarun Ranjan Majumdar v. Siddhartha Datta[vi], the court stated that the parent having a child’s custody should be financially stable to ensure that child’s needs such as health, education, etc. are not compromised. In another case of Mausami Moitra Ganguli v. Jayant Ganguli[vii], the court granted the custody of the 5 years old child to the mother, who was highly qualified and well placed whereas the father has an average income. The court granted visitation rights to the father etc.
Is the interest of the child the sole criteria?
The child’s interest is the prime criteria while determining the issue of child’s custody, however other factors are also considered by the court such as child’s wishes, needs/demands, attachment with the parent, the aforesaid factors are also given due importance while deciding the issue.
In the case of Rosy Jacob v. Jacob A. Chakramakkal[viii]– The Court while analyzing the object and scope of the Guardians and Wards Act, 1890 stated that it is not merely physical custody of the child but due protection of child’s rights including health, maintenance, and education is important. While considering the issue of minor’s welfare due importance is to be given to the right of the father who is the natural guardian of the child but if such custody doesn’t promote the child’s welfare then he may be refused such guardianship for the child’s betterment.
Elizabeth Dinshaw v. Arvind M. Dinshaw[ix], the Apex Court held that child’s welfare is paramount and should be given due weightage while deciding the sensitive issue of child custody.
In the custody battles between the parents, the psychological equilibrium of a child is majorly affected, and the parents forget that in their dispute the major sufferers are their children. As discussed above, the courts around the globe have given the child’s welfare the paramount while granting custody to either parent. However, now courts have been emphasizing the shared parenting and joint custody of the child.
Rohith Thammana Gowda v. State of Karnataka & Ors[x].
Facts in brief
In the instant case Rohith Gowda who was the father of minor son named Aarya Ranjini Rohith, sought his custody and sought permission to take the child to the United States of America (USA) where he was born. It was told to the Court that many conflicts and confrontation occurred in the marital relationship and the mother of the child came to Bengaluru in India with the child, without the father’s consent. In a case that was filed before the foreign Court by the father of minor son, orders for the return of the child to USA were passed and the same was noted by the Supreme Court in India.
The USA Court subsequently suspended the order of spousal support but it did not pass any order regarding the custody of the child and hence, custody of the child was continuing with the mother in India.
Observations of the Court
The Supreme Court noted that while considering the question of child’s interest is paramount consideration, however the High Court had swayed away from this issue and it entered into consideration of certain aspects not relevant for the said purpose.
The Supreme Court division bench noted that “The High Court, after taking note of the various proceedings initiated by the appellant before the US Courts formed an opinion that he had initiated such proceedings only with an intention to enhance his chance of success in the Habeas Corpus Writ Petition and to preempt any move by the wife (respondent No.3) for custody by approaching the Indian Courts”.
The Supreme Court further took into consideration the question whether the child was a naturalized US citizen with an American passport and his parents were holders of Permanent US Resident Cards, etc. the High Court failed to give attention to these issues.
It was added by the Court that merely because the child was brought to India by the mother on and he was admitted in a school and that he is now feeling comfortable in India cannot supersede the relevant factor of child’s welfare who is 11 years old boy was born and lived nearly for a decade in USA. With this view, Court, allowing the appeal, directed the mother to ensure that the child returns back to United States of America.
Decision of the Court
The Apex Court considered the issue of custody of a minor child, and held that unless it is very serious proven conduct of the parent that makes him/ her unworthy to claim child custody the question of custody would be decided solely on the question i.e. ‘what would be the best interest of the child concerned’ and not on child’s wish/ desire.
The Top Court while considering the aforesaid issue stated that “In a matter involving the question of custody of a child, it has to be borne in mind that the question ‘what is the wish/desire of the child’ is different and distinct from the question ‘what would be in the best interest of the child’”.
A bench of Justice AM Khanwilkar and Justice CT Ravikumar was hearing an appeal filed by the father for seeking custody of his son clarified that “Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to ‘what would be in the best interest of the child’ is a matter to be decided by the court taking into account all the relevant circumstances.”
[i] (2017) 4 SCC 573
[ii] 1973 (1) SCC 840
[iii] https://www.thehindu.com/news/cities/mumbai/hc-grants-custody-of-child-to-father/article33145571.ece
[iv] Appeal (civil) 5088-5097 of 2007
[v] 2015 (2) RCR (Civil) 291
[vi] AIR. 1991 Cal 76
[vii] 2008 (4) RCR (Civil) 551
[viii] (1973) 1 SCC 840
[ix] 1987 (1) SC 42
[x] SLP(C)No.17166/2021
