*By Abhinav Singh & Tamanna
Introduction
Child Custody decisions in India are primarily regulated by the Hindu Minority and Guardianship Act, 1956, Guardians and Wards Act, 1890 and other religious personal laws. These Acts assert that the child's welfare comes before the considerations of parenthood and all the other factors. While dispensing justice over custody cases, the courts implement the welfare principle, according to which the child's life's emotional, physical, and educational aspects should be assessed. Drawing on landmark judgements and international treaties such as Article 3 of the UNCRC, Indian jurisprudence is being worked to guarantee the children's all-round growth and development in a stable, nurturing environment.
The welfare concept ensures that decisions safeguard the child's welfare by prioritising the child's education, moral upbringing, stability, and emotional and physical health.
This principle prioritises the child's welfare over the parents' rights or preferences, highlighting the child's importance in custody decisions. The courts look at several variables to determine what is in the child's "best interests" and prioritise the child's long-term growth and safety. This article examines how the welfare principle is applied in custody disputes, emphasising the standards and procedures that courts employ to determine and preserve the child's best interests.
The Application of the Welfare Principle in Custody Cases
The Indian courts have consistently applied the welfare principle in all custody cases; courts have consistently ruled that a child's welfare supersedes parental claim. In the case of Gaurav Nagpal v. Sumedha Nagpal, a clear example is cited where it is established that the child’s welfare has been paramount to superseding any statutory parental rights or the desires of either of the parents. Therefore, the child’s future emotional, physical, and cultural upbringing is assured rather than the parent’s legal rights.
The case of In re McGrath (1893, 1 Ch.143), which was later affirmed in the Indian case of Ms Githa Hariharan v. Reserve Bank of India, emphasised that the welfare of a child goes beyond mere financial support; it also embraces moral, emotional, and even spiritual welfare. This expands the scope of welfare in a broad sense, beyond pure physical or economic realisation to include within it the holistic development of the child. Similarly, in the case of Purvi Mukesh Gada v. Mukesh Popatlal Gada, the apex court again referred to the fact that the principle of welfare has to be of all-time highest value when giving weight to any other factors that are relevant in any battle of custody.
Moreover, under this principle, courts look for various factors that determine a custody decision, and at the top of these factors stand the child’s age, health, and emotional ties and the parent's ability to maintain a healthy environment. In a couple of cases, courts, as is clearly stated in the case of Purvi Mukesh Gada, have emphasised that where any parent cannot always provide consistent moral, emotional, and physical support, it has often been damaging to the child. This can be seen more emphatically in the case of child custody, as in Gaurav Nagpal, where it was held that sometimes, any parent is not suited to provide the environment that the child requires for growth.
This was a reiteration of the earlier position taken and laid down in Smriti Madan Kansagra v. Perry Kansagra, which stated that the child’s welfare is the sole and paramount criterion. Welfare often dominates in cases of child custody. The court further said that regarding the question, which would always precede it, when this very question concerning custody comes before it, it should 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." The case also reminds us that the child's nationality is an essential factor to consider.
However, the recent case of Lahari Sakhamuri v. Sobhan Kodali lays out factors for courts to consider in terms of custody cases, such as maturity, mental stability, character, financial sufficiency, community involvement, access to education, and the parent-child relationship, which is best for the child.
Analysis of the Welfare Principle
Judicial interpretations demonstrate that the focal point of the welfare principle is to promote the child's best interest, which essentially entails fulfilling a twin-pronged objective. Firstly, ensure the best environment for the child's development, with the child’s best interest taking precedence over any other factor. Secondly, the public interest associated with the child's proper upbringing should be considered. As the child represents the nation's future, public welfare hinges on their proper upbringing, as emphasised by the Hon’ble Supreme Court in the case of Vivek Singh v. Romani Singh.
The authors contend that the welfare principle has stood the test of time in ensuring the child’s emotional, physical, and educational well-being, based on the judicial interpretation by the courts, consistently upholding the needs of the child over any other right, along with an ever-expanding list of factors which the court takes into consideration while deciding such custody cases has ensured that whatever action is taken is taken in the best interest of the child and their development. Hence, it has stood the test of time and consistently evolved to address any emerging concerns.
Interplay Of Joint Custody Approach with The Welfare Principle
While the ideal scenario at the time of the separation of the parents is joint custody to ensure the welfare of the child, providing both parents with an opportunity to look after the child is not always feasible. Many arguments favour adopting shared parenting as a usual practice in India.
The Law Commission of India, in its 257th report, provided insight into the concept of shared parenting and suggested amendments to laws regarding joint custody. According to the Law Commission report, two models of shared parenting exist in India. One is shared responsibility parenting, where the parent not granted custody still shares economic and decision-making responsibility. The other is shared access parenting, wherein the non-custodial parent still has physical access to the child, who lives with both parents at alternating intervals, and the child’s responsibility is borne by the parent who has custody at that time.
It is essential to recognise the significance of shared parenting or joint custody for the sustainable growth of a child. Courts should grant joint custody in cases where it is feasible. However, there should not be a presumption of joint custody; numerous factors could compromise the welfare principle if joint custody is awarded. For instance, if one of the parents has a history of domestic violence and abusive behaviour, allowing the child to stay with that parent could have severe psychological and, in some cases, physical repercussions. When addressing custody matters, the courts should assess whether denying such parents rights to the child's custody is necessary.
Conclusion
The welfare principle is a cornerstone of child custody decisions in India, attempting to prioritise the child’s best interest over parental rights or any other preferences. The courts have applied this principle, considering a range of factors, including the child’s emotional, physical, and educational well-being; this ensures that an informed decision is taken regarding the child’s custody. The principle has evolved to encompass a holistic view of child welfare, extending beyond financial considerations to include many other important aspects.
While joint custody is beneficial, courts must assess their feasibility in each case to ensure the same is in the child’s best interest. The Law Commission of India's recommendations in its report on the shared parenting model also reflects a growing awareness of the need for a more nuanced approach to custody regimen in India. However, we believe that joint custody matters should be looked upon in the future, primarily focusing on the child's benefit.
Ultimately, the welfare principle's adaptability and child-centric focus have enabled it to remain relevant and effective in addressing the complex challenges of modern custody disputes.
*Abhinav Singh is a fourth-year law student pursuing a B.A. LL.B ( Business Law Hons.) at the National Law University, Jodhpur.
*Tamanna is a second-year law student pursuing a B.A. LL.B (Hons.) at National Law University, Jodhpur.
The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.
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