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What are the factors which constitute the welfare of the child in a custody case in India?

What are the factors which constitute the welfare of the child in a custody case in India?

In a divorce disagreement, children are the most vulnerable parties, and the anguish they experience during and after the judicial resolution of such disputes is immeasurable. Children are the ones who suffer the most as a result of divorce and family breakdowns. They are frequently used as pawns in such situations, and their parents utilise them for their own gain, striking deals that rarely take into account the emotional, social, and mental upheavals that the children may be experiencing. The wellbeing of the minor must be the primary priority when appointing or declaring a guardian, irrespective of the rights and wrongs that the parents contend[1]. In deciding custody and guardianship cases, the best interests of the child must be taken into account. Maintaining the fundamental importance of the child's welfare in custody procedures will help to assure the child's future safety and protection, regardless of fluctuating familial circumstances.

The issue with the welfare concept is that, despite its widespread use, the legal content of this principle is not illuminated by appellate judicial decisions[2]. In the lack of legal guidance on what elements should be considered for determining a minor's best interests, courts apply their own interpretations based on their own opinions about what is best for the children and ideal parents. For example, there are differing opinions on whether a parent's financial capacity is a relevant consideration in determining custody. Since courts have such wide discretion under the welfare principle, several elements that should be taken into account are overlooked while deciding custody[3]. The welfare standard's determinants should therefore be explicitly defined to prevent judges from overlooking specific difficulties while deciding on custody and visitation. The best interests of a child should be a focal point in any custody dispute, according to a simple explanation of this principle. Custody should be given to the parent who is best equipped to provide the child's mental and physical well-being, educational and medical needs, and all of the basic rights that a child is entitled to as he or she grows up. The rationale for this principle, despite its abstract character, is that every child requires a pleasant and progressive environment in which to flourish. A parent must be qualified to take day-to-day care and control of the minor and must not be unfit for providing the child with facilities. For example, if the father of the child is able to prove to the Court that he can provide better quality of education, resources and healthcare to the child than the mother, he will be granted the custody of the child. It was held in Tejaswini Gaud V Shekhar Jagdish Prasad Tiwari[4] that the child's welfare encompasses factors such as upbringing, the guardian's economic well-being, the child's comfort, contentment, health, and education.

In general, the welfare of the child is determined by factors such as the child's physical and mental condition, each parent's physical and mental condition, the child's relationship with each parent, the child's needs regarding other important people like siblings, extended family members, peers, etc., the role each parent has played and will play in the child's care, and each parent's ability to support the child's contact and relationship with others. These elements, however, are not exhaustive, and some statutes specifically provide that courts must examine such circumstances as the court deems necessary and proper to the determination. If a child is sufficiently competent and mature, his or her preference in questions of custody is often taken into account. For example, if a child expresses their desire to stay with the mother and the child is mature enough to make this decision, then the custody of the child goes to the mother. The Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act 1956 govern child custody in India. According to the Hindu Minority and Guardianship Act, the 'natural guardian of a Hindu minor, in respect of the minor's person as well as the minor's property, in the case of a boy or unmarried girl is the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother[5]. This can have a plethora of connotations, including that the law reflects our patriarchal social order and that small children are always best off with their mothers. A legal system that does not consider legal guardianship to be synonymous with physical custody of a child further complicates matters.

The Supreme Court of India has historically maintained that the welfare and interest of the child, not the rights of the parents under a legislation, is the most important factor to examine when deciding child custody issues. As if to clear up any uncertainties, the Court has stated, that no statute on the topic can neglect, disregard, or destroy the crucial aspect of the minor's welfare. In a landmark decision, the Supreme Court said that gender equality is one of the essential values of our Constitution, and that the father cannot be ascribed to have a preferential privilege over the mother in the area of guardianship because both come within the same category. This was tantamount to the Supreme Court declaring that gender was not a factor in child custody decisions. However, the Karnataka High Court later ruled that it is the most natural thing for any child to grow up in the company of one's mother and that a minor receives the best protection only through the mother. The Supreme Court made it clear that they do not adhere to the general remarks and comments made by the High Court in favour of the woman as parent to be always preferable to the father to keep custody of the kid, in an appeal in the same case[6]. Despite the Supreme Court's overarching remarks on the subject of child custody, it is typically the subjectivity of a single judge who decides a case of child custody. In the absence of a specific legislation, child custody decisions are largely left to the discretion of a single judge, who is drawn from a society that is not necessarily free of preconceptions. Given the current state of India's custody laws, it is clear that a gender-neutral custody law is urgently required. These stereotyped considerations in matters of custody can be avoided by enacting a specific set of guidelines on the subject that prioritise the minor's wellbeing. In disputes of child custody, the Courts must follow the uniform practice of keeping the child’s best interest in mind and adopt a tendency of equating the mother and father equally.

Furthermore, the provisions in the current custody and guardianship laws need to be amended in accordance with the recommendations made by the Law Commission of India in its 257th Report.

 

[1] Carla Gannon v. Shabaz Farukh Allarakhia, Criminal Writ Petition No. 509 of 2009. (Bom. H.C.).

[2] Asha Bajpai, Custody and Guardianship of Children in India, 39(2) FAMILY LAW QUARTERLY 441, 447 (2005).

[3] Law Commission of India, Reforms in Guardianship and Custody Laws in India, Report No. 257 (2015).

[4] Tejaswini Gaud V Shekhar Jagdish Prasad Tiwari, (2019) 7 SCC 42.

[5] § 6 (a). Hindu Minority and Guardianship Act, 1956, No. 32, Acts of Parliament, 1956 (India).

[6] Kumar v. Jahgirdar v. Chethana Ramatheertha, 2003 (3) KarLJ 530.

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