In a matter relating to the custody of the child, the welfare of the child is paramount and seminal. It is inconceivable to ignore its importance and treat it as secondary. The interest of the child in all circumstances remains vital and the Court has a very affirmative role in that regard. Having regard to the nature of the interest of the child, the role of the Court is extremely sensitive and it is expected of the Court to be pro-active and sensibly objective.
Section 26 of the Hindu Marriage Act, 1955 (HMA) deals with custody of children. It empowers the court, from time to time, to pass interim orders and make provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children consistently with their wishes, wherever possible, and the Government may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending, and the court may also, from time to time, revoke, suspend or vary any such orders and provisions previously made.
The proviso appended to the Section postulates that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.
Recently, the Supreme Court of India in the case of Smriti Madan Kansagra v. Perry Kansagra relied on Section 17(3) of the Guardian and Wards Act, 1890 and stated that if a minor is old enough to form an intelligent preference, then the Court may consider the preference of that minor. As per Section 17(3), the preferences and inclinations of the child are of vital importance for determining the issue of custody of the minor child. Section 17(5) further provides that the court cannot appoint or declare any person to be a guardian against the will of the minor child. The Court ruled that in the present case, the issue of custody of the minor depended on the overall consideration of the holistic growth of the child, which has to be determined on the basis of his preferences as mandated by Section 17(3).
In Mausami Moitra Ganguli v. Jayant Ganguli, it has been held by the Apex Court that the principles of law in relation to the custody of a minor child are well settled. While determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. The provisions contained in the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956 hold out the welfare of the child as a predominant consideration because no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor.
Principles as to custody and upbringing of minors:
Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other.
In Rosy Jacob v. Jacob A. Chakramakkal, the Supreme Court ruled that the children are not mere chattels, nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.
To decide the issue of the best interest of the child, the Courts usually take into consideration various factors, such as:
- the age of the child;
- nationality of the child;
- whether the child is of an intelligible age and capable of making an intelligent preference;
- the environment and living conditions available for the holistic growth and development of the child;
- financial resources of either of the parents which would also be a relevant criterion, although not the sole determinative factor; and
- future prospects of the child.
In
Vikram Vir Vohra v. Shalini Bhalla, the Lower Court judge had interviewed the child who was seven years old to ascertain his wishes. The Supreme Court took note of these facts. The two Judges of the Supreme Court too interacted with the child in the chambers in the absence of his parents to find out about his wish and took note of the fact that the child was going through a vulnerable time and was at an informative and impressionable stage and eventually opined that the order passed by the Lower Court pertaining to visitation rights of the father had been so structured that it was compatible with the educational career of the child and the rights of the father and the mother had been well balanced. It is common knowledge that in most of the cases relating to guardianship and custody, the Courts interact with the child to know her/his desire keeping in view the concept that the welfare of the child is paramount.
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