After the Tender Years Doctrine: Welfare, Discretion, and Custody Adjudication in India
- Mihika Joshi
- 2 hours ago
- 8 min read
*Mihika Joshi
A Division Bench of the Delhi High Court in Debarati Bhunia Chakraborty v. Suman Sarkar Bhunia [“Debarati Bhunia”] recently delivered a judgment that reflects the judiciary’s growing departure from the traditional “tender years doctrine” on account of it being “rooted in colonial-era gender stereotypes.” The Hon’ble Court emphasised that child custody decisions must no longer presume that young children naturally belong with their mother, instead, the court suggested that any custodial decision must be made upon weighing factors, such as financial and physical security, psychological growth, and educational needs. For instance, in the present case, the court considered factors of parental alienation to displace the absolute assumption of the mother’s status as a primary caregiver.
Ultimately, in this case, the custody was awarded to the father, despite the mother raising claims that, as the primary caregiver of the child, she should continue to have custody, in line with the tender years doctrine. The Court rejected these submissions, giving priority to evidence that suggested parental alienation, concluding that the best interests of the child would be served with the father.
On one hand, the Delhi High Court’s judgment is justified in its refusal to apply an archaic doctrine; the doctrine is rooted in its assumptions about maternal instinct, coupled with that of paternal incapacity. These assumptions sit uncomfortably alongside Article 14 of the Constitution (equality before the law), as there lies no rational nexus between sex and capacity. The Court’s decision thus furthers the notion that caregiving is not a sex-linked function. The steady displacement of the doctrine by a welfare-first approach indicates a genuine maturation of family law jurisprudence in India.
However, this article raises a consequential question that necessarily arises from this displacement, that is: when courts abandon settled doctrines that bind judicial decision making, what is the system that follows? This article seeks to analyse the “best interests of the child” standard as a successor to the “tender years doctrine,” where the resultant system risks being one of unchecked judicial discretion. It argues that while the welfare standard is normatively preferable to the tender years doctrine, its effectiveness depends upon a transparent framework capable of structuring judicial discretion.
The Tender Years Doctrine: A Flawed Rule that Nonetheless Performed a Legal Function
The tender years doctrine arose in the 19th century out of a need to abolish the prevailing absolute paternal custody norm. The courts went from granting absolute custody to the fathers without looking at any other factors, to now presuming that children belonged with their mothers in the “tender years,” which was from birth, until the age of five. This started as a practice in English common law, which was later transplanted into India, and has persisted since Independence.
The doctrine raised obvious issues – it did not consider whether the father was a capable caregiver, nor did it account for situations where the mother was unable to provide a stable and safe environment due to factors such as neglect, incapacity (financial and psychological), or other factors affecting the child’s welfare. More than anything, it could not accommodate families that simply did not fit its underlying assumptions. Yet, it performed a function that regularly goes unacknowledged: it reduced the potential for arbitrariness, providing a reliable system or rule, based on which custody cases were adjudicated. The Guardians and Wards Act of 1890 does not offer much direction on its own. Section 17 directs courts to look at a minor’s age, sex, religion, the character of the proposed guardian, and the child’s preference. The Hindu Minority and Guardianship Act of 1956, further states that the father is a child’s natural guardian under Section 6. However, courts see this more as a beginning than an end to their considerations. This made way for the tender years doctrine, which has been used to fill in these gaps where the laws have fallen short.
Now, when the doctrine has begun to retreat, the question is not merely what value replaces it, but rather whether any structure does. In general terms, this is the traditional jurisprudential dichotomy between rules and standards, wherein rules provide predictability and limit discretion via ex ante decision-making, while standards emphasize discretion and context-based determination. This evolution from the “tender years” doctrine to the welfare test serves as an example. The issue here is not about which of these two approaches should be considered superior, but whether standards need any institutional arrangement to organize the discretion they provide.
The Rise of the Welfare Standard
Supreme Court decisions on child custody have, over the years, progressively moved towards elevating the welfare standard for children, gradually positioning it as a dominant framework, rather than a background consideration. In Rosy Jacob v. Jacob A. Chandramakkal, the Court held that it must not decide “on the legal rights of the parties, but on the sole and predominant criterion of what would serve the best interest of the minor.” In Gaurav Nagpal v. Sumedha Nagpal the court articulated welfare in its widest sense, going as far to encompass physical comfort, health, education, intellectual development, and the moral and ethical values of the child. In Lahari Sakhamuri v. Sobhan Kodali, the Court reaffirmed that welfare determinations require consideration of multiple factors including emotional bonds, the child’s development, parental capacity, and overall stability; thus reinforcing the emphasis of Gaurav Nagpal. The parens patriae jurisdiction of courts, as held in Sheoli Hati v. Somnath Das, ensures that no custody-determinative decision is ever solely a matter of parental rights, and that the child’s welfare is always the judicial foundation upon which any such decision is to be made.
On paper, it is the perfect standard. However, when it comes to application, the welfare standard carries with it costs that are rarely considered- or explicit- in the judgments that invoke it. Courts fail to address the possibility that there exist conflicts within the welfare standard. The emotionally present or stronger parent may not be the most financially capable. The parent that the child prefers may not be the one that courts consider more suitable.
No case is straightforward, each case holds within it welfare factors that weigh in either direction. In practice, courts often acknowledge these competing considerations but fail to articulate any consistent principle to resolve them. The resulting situation is one where the balancing exercise becomes one of judicial discretion. This raises a crucial legal question: which factors must necessarily hold more weightage, and what must be the deciding factor in resolving such conflicts that inevitably arise in the nuanced realm of custody disputes?
Invisible Presumptions within the Welfare Standard
The challenge with the welfare standard lies not merely in its breadth, but rather, its claim of being neutral. The decline of the tender years doctrine over the past decade is often celebrated as being absolutely progressive, yet the abandonment of an express presumption does not eliminate the need for courts to make evaluative choices. It merely changes the level at which these discretionary evaluations operate.
Modern constitutional jurisprudence has become increasingly attentive to this problem. In Joseph Shine v. Union of India, the Supreme Court did not just strike down the adultery provision due to its unfair treatment of women, it also dismissed the archaic notion of marriage that the law was founded upon. The judgment explicitly observed that the law can no longer rest on outdated gender roles within families. In Navtej Singh Johar v. Union of India, the Court made a similarly significant claim. It expressed that while the criminal prohibition of same-sex relationships appeared to be universal on the face of it, it rested upon unarticulated heteronormative assumptions. Thus, in both cases, constitutional scrutiny extended beyond the letter of law, to go as far as to consider the nuanced social assumptions that were inherently embedded within it.
These decisions are particularly relevant in the custody context, as they show that constitutional scrutiny goes beyond what is explicit in the law into the underlying social assumptions that inform their interpretation. If the process of welfare decision-making continues to rest on implicit assumptions about what an ideal parent or family life looks like, then these assumptions too, must be subject to judicial scrutiny.
Welfare-based adjudications continue to require judges to make assumptions regarding what constitutes a “stable home,” “responsible parenting,” and “meaningful parental attachment.” These assessments are not value neutral. Rather, they portray specific views on family life and raising children. While the tender years doctrine was easy to critique and scrutinise, all that recent jurisprudence does is to erase the scope for such debate. The system now operates through the process of balancing welfare considerations thus making them less visible, in the absence of a standard or system for such weights to be assigned.
The Case for a Statutory Welfare Checklist
The current Guardians Act has not been significantly amended so as to accommodate a structured welfare inquiry. Section 17 lists factors, but does nothing to systematise their application. The Law Commission, through its reports, has repeatedly flagged the need for legislative reform of the Guardians Act. These recommendations, however, remain unaddressed.
Various jurisdictions already account for this gap. Section 1(3) of the United Kingdom’s Children Act, 1989, provides a comprehensive checklist that reduces scope for bias or arbitrariness. It is a mandatory framework, encompassing seven major criterias used to objectively determine the best interests of the child. It requires courts to consistently consider the child’s ascertainable wishes and feelings, physical and emotional needs, and the likely effect of any change in circumstances to the same. The framework does not seek to absolutely eliminate discretion- it merely seeks to make discretion more visible, and thus challengeable.
Similarly, Australia’s Family Law Act, 1975, outlines a structured framework, placing child safety and views as a primary consideration, which is further supported by factors such as capacity of caregivers, needs, benefit of relationships, and so on. It thus assigns much needed weights to the factors, categorising them between primary and additional considerations, in order to resolve internal conflicts that were observed in Debarati Bhunia.
This demonstrates that similarly, the current gap in the Indian framework can seamlessly be filled by a similar checklist provision by incorporating it into the Guardians and Wards Act, 1890. If the central problem is that courts create hidden hierarchies of welfare factors without proper statutory authority to do so, or do not follow a consistent framework, then the solution is to make these hierarchies explicit, which would prompt courts to reason through them publicly.
A checklist does not take away the Court’s discretion, but rather, it provides structure to these discretionary powers. Most importantly, it streamlines appellate review. A Court that fails to consider a relevant factor, or fails to apply it reasonably, can easily be corrected in an appellate capacity in a way that a court exercising unregulated “welfare” discretion cannot.
A checklist should, at the very least, consider, or prioritise the following factors:
i. The child’s ascertainable wishes and feelings;
ii. The safety of the child, both mental and physical;
iii. Each parent’s past, as well as likely future contribution; and
iv. Any conduct that has or that may have a bearing on the child’s welfare.
Just like the Australian model, these factors must be given priority, with additional factors supplementing these causes. Moreover, parental alienation must be expressly recognised as a welfare factor. This is a recognition that current legislation does not provide, leaving courts to address it on a case-to-case basis.
This is not a radical proposal. It is the logical next step in adopting a welfare-based framework. When the welfare standard forms the foundation for custody law adjudication in India, the law needs to necessarily clarify what that means in practice, which is exactly what a statutory welfare checklist seeks to achieve.
Conclusion
The development of Indian custody law indicates a definite trend towards child-centricity in custody litigation. However, a welfare principle that does not have a structure attached to it could make the process of exercising judicial discretion opaque, and fail to reveal the rational basis behind judicial decision-making. An attempt to develop a legislative list for determining the welfare of children will retain the flexibility that comes with the welfare principle, while ensuring that its application is based on reason and subject to review.
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