The utmost priority of the Court in determining the custody of a minor is to see his/her welfare and well-being. This is the reason, law provides a parental ....... ~ Family Judgment & Case Laws

The utmost priority of the Court in determining the custody of a minor is to see his/her welfare and well-being. This is the reason, law provides a parental jurisdiction to the Guardian Judge in such cases. The objective of the law is not just handing over the custody of the minor, but to examine all the aspects which are ancillary to it. The power and duty of the Court while considering the question of custody of a minor is to thoroughly and comprehensively take into consideration the minor's welfare. The word "welfare" in such cases is to be taken in its widest sense, which includes not only the monetary expenses of the minor but also his mental and physical health, educational needs, psychological well-being, religious and moral values. The Courts are duty bound to consider such cases in the best interest and healthy up-bringing of the minor which sometimes may yield the rights of the parents. No doubt according to certain Muslim jurists, custody of a minor son till the age of seven years may remain with the mother and in the case of minor daughter till she attains the age of puberty and thereafter, normally their custody should be restored to the father. However, it is an established principle of law that the paramount consideration in all such situations would be the betterment of the minor and even a mother may be deprived of the custody of a minor if circumstances of the case so allow. In the cases, concerning the custody of a child, the Guardian Court is not required to go into the intricacies/technicalities of the matter, rather is obliged to confine itself to the extent of the welfare of the child/minor, which is a paramount consideration.

The consideration for grant or refusal of custody of minors will always be determined on the basis of their welfare, that is to consider what is in the best interest of the child. The court's jurisdiction in custody cases is in the form of parental jurisdiction which means that the court must consider all factors from the parents' ability to provide for the child including physical and emotional needs, medical care but also relevant is the parents' ability to provide a safe and secure home where the quality of the relationship between the child and each parent is comforting for the child. Hence, there is no mathematical formula to calculate the welfare of the minor, as the factors range from financial and economic considerations to the household environment, the care, comfort and attention that a child gets. Accordingly, the concept of welfare of the child is an all encompassing concept which will cover not only the manner in which the child has to be cared for but will also include the physical, mental and emotional wellbeing of the child. Custody is about the care and comfort of the child and the right of the child to a family. Custody matters are always sensitive and require a great deal of care as the court has to weigh in all factors in order to determine where the welfare of the minor lies. In cases of remarriage, circumstances change, hence, while looking at the welfare of the child, the entire living arrangement and environment has to be reassessed in the context of the welfare of the child. Fundamental to this decision is the best interest of the child and not that of the parent.

Section 25 of the “Act” relates to transfer of the custody of minor if he leaves or is removed from the custody of a guardian of his person. Paramount and supreme consideration in custody of minor is the welfare of minor and nothing else. Any issue regarding the custody of minor is to be assessed, examined and measured by the Guardian Courts on such yard stick and the Court has to record a definite finding on the point before passing any order in the matter. The Guardian Court, while passing order, has to see the age, sex, environment under which the minor is being brought up and all the attending circumstances, position of parties and also the law to which the minor is subject.