Welfare of Child is of Paramount Importance

At the heart of the law relating to children is the notion that whenever a court considers a subject dealing with the rearing of children, the main concern should be the children's welfare. This is why, in India, custody cases cannot be decided without the following statement: "The Court is of the opinion that the welfare of a child is of paramount importance and in this case."

What do you mean by Welfare?

The minor's welfare would be evaluated in terms of his physical health, education, emotional fulfillment, moral and spiritual growth, as well as any psychological damage that the young child would suffer as a result of being separated from any parent, among other things. The elements listed in Section 17(2) of the Guardianship and Wards Act as being necessary to consider when choosing a guardian for a juvenile are also relevant to consider when deciding on his custody.

The age, sex, religion, character, and capacity of the proposed guardian, his proximity to the minor, the wishes of any deceased parents, his existing or previous relationship with the minor or his property, and the minor's preference, if he is old enough to form an intelligent opinion, are all factors to consider. Furthermore, if the person is properly caring for the child, his or her resources are not material. In establishing the cumulative effect of so many elements, the court faces a difficult challenge.[1]

What does ‘Paramount’ mean here?

The wellbeing of the child is the only factor, as the court is only concerned with the mother's and father's interests insofar as they affect the kid's welfare. Children's interests trump those of even the most perfect parents. So it does not matter if an order is "fair" or infringes on parents' rights; what matters is whether it serves the best interests of children. This does not negate the importance of parents under the welfare principle, because if a parent is hurt, it is possible that they will become a less successful parent, which will harm the parent[2]. So the parents' interests can be considered, but only if they have a direct influence on the child. It's worth noting that article 3 of the UN Convention on the Rights of the Child specifies that the child's welfare should take precedence[3].

Now when speaking and discussing custody we need to first look into the matter. Who has the right to custody of a minor? In this scenario, judicial precedents have established that the child's well-being takes precedence over the one claiming custody's legal right, interest, or good[4]. It is impossible to decide who would be a better custodian for the child based on the affidavits. Only persuasive evidence offered by the parties regarding their suitability for the child's welfare can be used to make a decision. Section 6 permits a parent to be given custody or guardianship of a kid if he or she can be held responsible for the child's well-being.

Section 13- Welfare of minor is of Paramount Importance in both Custody And Guardianship

The behaviour of a child can reveal the child's preferences. The Supreme Court judges in Rajiv Bhatia v. Govt. of NCT of Delhi[5] summoned the child to their chambers to hear her side of the story. The child was too young to have any favourable feelings about inquiring, but when the adoptive parents tried to chat, she started crying. The judges received the feeling that the child wanted to remain with natural mother

In Rohini Sharma v. Satya Sharma, the respondent, the kid's maternal grandmother, did not bring the child to court despite being given three chances. The court ruled that the respondent has no right to custody of the kid in the presence of the natural guardian (in this case, the mother). However, in the case of Mohan Lal v. Kala @ Shanta Devi[6], the four-year-old toddler had lived with his father for 1 and 1/2 years and could not recognise his mother when she tried to take him. The court decided that based on this aspect alone, it could not be stated that temporarily handing over custody to the mother was not in the best interests of the kid. However, It is argued that giving the child's custody to the mother was not in the best interests of the child because he began crying when she attempted to take her. Even a temporary change of custody cannot be justified in this case. Visitation is fine, but the child is four years old, so it cannot be blamed on fear. The fact that he didn't recognise her and began crying is sufficient to decide that the child's wellbeing is in the father's hands.

In Ram Kishore v Nirmala Devi the custody was handed over to grandfather and this was in accordance with the child's wish. As stated above better education and opportunities would also be considered as a factor that aims towards the welfare of the child. However in Kala Aggarwal v Suraj Prakash Aggarwal[7] Delhi HC ruled that father will have custody inspite of the fact that mother lives in US and is financially sound. Here HC found that the children were not loved by mother and relatives whereas father and his parents loved and cared for the children. Therefore the custody was given to the father since mere better financial status could not be a determining factor of welfare.

However, as stated in Jai Prakash Khadria vs Shyam Sunder Agarwalla[8] by its very nature, a custody order can never be definitive. It's an interlocutory agreement that can be revised in the child's best interests if circumstances change. However, before making a change, the court must be satisfied that it is in the child's best interests.

Court’s Duty

In the case of Elizabeth Dinshaw v. Arvand M. Dinshaw[9] it was stated that irrespective of jurisdictional issue it is the responsibility of courts in all countries to ensure that a parent who commits a crime by removing children from the country gains no benefit from his or her violation. Therefore, in this case it was observed that it when a child's presence in India is the consequence of an illegal abduction, the parent who committed the abduction cannot claim any benefit by claiming that the child has already been enrolled in a school.

In Custody Battles the psychological equilibrium of a child is profoundly affected by marital discord, and the way parents maintain strong ties with their children has an impact on their adjustment to change. Focusing on children's rights in cases of parental dispute is a proactive step toward understanding this unique circumstance, which necessitates a unique articulation of children's rights. Thus, the issue of welfare in custody cases has to be cemented legally to ensure the protection and welfare of the child in a holistic manner

[1]Report No.257, Law Commission of India, https://lawcommissionofindia.nic.in/reports/Report%20No.257%20Custody%20Laws.pdf

[2] Ritika Sharan v. Sujoy Ghosh, 2020 SCC OnLine SC 878

[3] Jonathan Herring, Family Law (6th edn, Pearson 2013)

[4] Soumitra Kumar Nahar versus Parul Nahar, Civil Appeal No(s). 1670 of 2020

[5] Criminal Appeal No. 922 of 1999

[6] AIR 1964 All 21

[7] 48 (1992) DLT 218

[8] 2000 (6) SCC 598

[9] AIR 1937 SC 3