WELFARE OF MINOR TO BE THE PARAMOUNT CONSIDERATION: SUPREME COURT
Happy are those, who have a heart of gold and no one can claim to own this purity except that it can only be seen in children. This calls for an inevitable duty of the society to give prime importance to the welfare of children. The word “welfare” includes physical and mental welfare. The facet of welfare of the children has been eloquently put forth in plethora of judgments by the Hon’ble Supreme Court and various High Courts of the country, wherein the aforementioned principle has been defined as the luminous pole star in the entire gamut of the laws relating to custody and guardianship of children in India. The Courts of the country have time and again reiterated that the welfare of the children is of paramount consideration and the same cannot be premised on the convenience or pleasure of the parents.
Section 17 & 19 of the Guardians and Wards Act 1890 and Section 13 of the Hindu Minority and Guardianship Act 1956 are complementary to each other and contain some guidelines for the welfare of the minor. Under the Guardians and Wards Act 1890, Section 17 lists the matters to be considered by the Court in the appointment of a guardian. The dominant matter for the consideration of the Court is the welfare of the child and it will not be taken into consideration merely by some silver chunks, or just by the physical comfort of the minor. The word ‘welfare’ must be taken in its widest sense. The moral and religious welfare of the child must be considered, other than its physical well-being, and the ties of affection should not be disregarded. The term ‘welfare’ also includes both material and spiritual welfare. In fact, the question of the true welfare of the minor is of such paramount importance that the recognized right of guardianship under the law to which the minor is subject to, must if necessary, be assigned a relatively subordinate position. This particular Section lays down the real test which the Court has to apply in appointing a guardian of a minor and the test is whether the appointment will be for the welfare of the minor.
Recently, a three-judge bench of the Hon’ble Supreme Court in Ritika Sharan vs Sujoy Ghosh reiterated that the welfare of the minor child is of paramount concern in matters concerning custody of the child. Stating the obvious, parents raise their child but after separation, irrespective, which parent wins the
- 1. Rosy Jacob vs. Jacob A. Chakramakkal, AIR 1973 SC, 2090
- 2. 2020 SCC OnLine SC 878
custody battle, the question of custody of the child becomes a ‘tug of war’; and it is the child who has to bear the cost of unprecedented and unwelcomed situations. However, on the perusal of the precedents, the role of the Courts has been to safeguard and protect the interests/welfare of the child. Generally, the Courts award physical custody to the parent who has adequate parental skills, financial security, environment for the proper growth and development of the child. Legal custody means that the parent has all the rights to make decisions for the holistic growth and development of the child. However, a parent who doesn’t get custody is not barred to meet or see the child, as the Apex Court in a catena of judgments has given visitation rights whilst holding that in order to achieve holistic growth and development of the child, it is extremely vital that both the parents should work as one unit. Moreso, whilst determining the welfare of the child it is equally imperative to keep morale and ethical welfare on the same footing to match the physical wellbeing of the child.
The Apex Court while considering the welfare of the child in one of its landmark judgments has held that the moral and ethical welfare of the child must also weigh with the Court as well as his physical wellbeing. The child cannot be treated as a property or a commodity and therefore, such issues have to be handled by the Court with care, caution, love, affection, and applying a human touch to the problem.
In determining the question of the welfare of the minor, the Court may take into consideration the nearness of the relationship of the applicant with his/her child which is a matter of main concern since the beginning. It is generally seen that the nearer the relationship of the guardian to the child, the more likely it is that the interest of the child will be looked after.
It is a well-settled principle of Law that agnates are preferred over cognates by the Hindu Sages alike, Mohammedan law provides for a list of kins and near relations that have preference under the English law. In modern times, the welfare of the child prevails over all the factors which can be influenced by personal laws.
The word “Welfare” has the widest amplitude. It is to be understood in its widest sense so as to cover the material and physical wellbeing, education, health, happiness and moral welfare of the child. The welfare of minor has to be determined by the Court after a careful consideration of the facts and circumstances of the each and every case, as the Indian laws do not lay down any test or guidelines to determine the aforesaid issue. The Court may, in determining what is for the welfare of the child, take into account the age and sex of the child, the character and capacity of the guardian, the needs of the child along with the wishes of the child where he or she is of sufficient age and discretion to express his or her preference, though in appropriate cases the wishes may be disregarded.
The Hon’ble Apex Court has again quoted that the welfare of the child to be the paramount consideration in Smriti Madan Kansagra vs. Perry Kansagra5 which must be considered by every court while deciding custody matters:
“The welfare principle is the public interest that stand served with the optimal growth of the children. It is well recognized that children are the supreme asset of the nation. Rightful place of the child in the sizeable fabric has been recognized in many international covenants, which are adopted in this country as well. Child-centric human rights jurisprudence that has been evolved over a period of time is founded on the principle that public good demands proper growth of the child, who are the future of the nation…”
“…It hardly needs to be emphasized that a proper education encompassing skill development, recreation and cultural activities has a positive impact on the child. Children are the most important human resources whose development has a direct impact on the development of the nation, for the child of today with suitable health, sound education and constructive environment is the productive key of the society. The present of the child, links to the future of the nation, and while the children are the treasures of their parents, they are the assets who will be responsible for governing the nation. The tools of education, environment skill and health shape the child thereby moulding the nation with the child equipped to play his part in the different spheres aiding the public and contributing to economic progression. The growth and advancement of the child with the personal interest is accompanied by a significant public interest, which arises because of the crucial role they play in the nation building.” if You like this blog I hope You will like this also Child Abuse In India