This article is written by Shefali Chitkara. This is an exhaustive article that covers the analysis of the case of Gaurav Nagpal vs. Sumedha Nagpal (2009), exploring the laws governing the custody and guardianship of children and the concept of ‘welfare’ of the child. This article deals with the background of the case, relevant facts, issues that were raised before the Hon’ble Supreme Court and the judgement given by the court. The author has also highlighted the judgements that were referred to in this case and the important subsequent judgement that referred to the present case. Further, the significance of this case is also mentioned.

This article has been published by Shashwat Kaushik. 

Table of Contents

Introduction

When determining any question of custody or guardianship of a child, it is an established principle that the welfare of the child is of paramount importance. The present case of Gaurav Nagpal vs. Sumedha Nagpal (2009) is a great example where the child has become the focus of controversy between the partners. The parties fought a number of legal battles and even the gates of the Supreme Court have been approached by the parties. This case has widened the meaning of the term “welfare” and it is now said to include both physical and moral well-being and also due consideration has been given to the ties of affection. 

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Laws regulating custody and guardianship in India

Before going into the details of the case, it was necessary to understand the laws regulating custody and guardianship in India.

We have personal laws and even secular laws dealing with the issue of custody and guardianship of a child. The provisions within the matrimonial acts can be invoked only when there is some pending proceeding under that Act. Otherwise, a statute made separately for dealing with this issue particularly has to be applied by the parties. Specifically for Hindus, we have the Hindu Minority and Guardianship Act, 1956 (hereinafter referred to as “HMGA”) and we also have the Guardians and Wards Act, 1890 (hereinafter referred to as “GWA”) which is a secular law for the appointment of a guardian for a child, irrespective of the religion, caste, gender, etc. The provisions under both these Acts or other personal laws dealing with the custody and guardianship of a child, are complementary to each other and not in derogation and the courts have a duty to harmoniously read them if case demands so. 

The custody rights of parents are primarily determined by keeping the best interests of the child as the paramount consideration. This principle ensures that all decisions and actions taken by the court prioritise the child’s overall well-being, safety, and stability over the rights and preferences of the parents. In evaluating custody arrangements, the courts typically consider several factors. These include the emotional bonds between the child and each parent, the parent’s ability to provide for the child’s physical and emotional needs, the child’s adjustment to home, school, and community, and the mental and physical health of all parties involved. The court may also take into account the child’s wishes, particularly if the child is of sufficient age and maturity to express a reasoned preference. Joint custody, where both parents share decision-making responsibilities and physical custody, is often favoured to ensure that the child maintains a meaningful relationship with both parents.

There is no hard and fast rule regarding the question of whom to give the custody of the child but there are a few accepted general rules which are highlighted in various decisions of the courts in India as well as in England:

  1. A minor child or a child of tender age should be generally under the custody of a mother since a father is not seen as capable of providing maternal affection as needed by a child for his/her proper growth.
  2. The boys who are older are generally placed under the custody of the father.
  3. The girls who are older are generally placed under the custody of the mother.
  4. Ordinarily, custody should be given to either of the parents, however, if the welfare of the child so requires, it may be given to a third person.

There is a minute difference between the term “custody” and “guardianship”. The word “custody” refers to the physical control over a person or a property whereas guardianship is similar to trusteeship and a guardian acts as a trustee. The custody can be for a temporary period and for a specific purpose, the same was held in the case of Ramesh Tukaram Gadhwe vs. Sumanbai Wamanrao Gondkar (2007).

Details of the case

Case title

Gaurav Nagpal vs. Sumedha Nagpal

Case citation

AIR 2009 SCC 557

Date of the judgement

November 19, 2008

Court

Supreme Court of India

Case Type

Civil Appeals No. 491 of 2006 and 5099 of 2007 from the decision of learned single judge of the High Court of Punjab and Haryana

Name of the appellant

Gaurav Nagpal

Name of the respondent

Sumedha Nagpal

Bench

Justice Dr. Arijit Pasayat and Justice G.S. Singhvi (two-judge bench).

Provisions involved

Facts of the case

The appellant, the husband, and the respondent, the wife, got married on October 14, 1996 and a child was born to them on November 15, 1997. It is alleged by the appellant, the father of the child, that the respondent, the mother of the child, abandoned the child on August 8, 1999. However, as per the respondent, when she was attending to household chores, the appellant whisked away their minor child after which she filed complaints. The appellant was then arrested and produced before the court at Bahadurgarh. 

An application was filed before the Sub Divisional Judicial Magistrate, Bahadurgarh, requesting the court to hold an inquiry, as to the whereabouts of the minor child. The Magistrate passed an order directing the appellant to produce the child on the next date of hearing. However, as the respondent could not reach the court in time, the Magistrate granted bail to the appellant and declined the prayer for production of the minor child. 

Thereafter, the respondent, filed an application for issuance of a writ in the nature of habeas corpus before the High Court at Delhi on August 25, 1999. This writ was, subsequently, dismissed by the High Court on January 14, 2000 on the grounds of lack of territorial jurisdiction. Against the High Court’s decision, the respondent filed a special leave petition under Article 136 of the Indian Constitution and also a writ petition under Article 32 of the Indian Constitution. The Supreme Court gave the interim custody of the 20-months-old child to the father.

Further, a maintenance petition was filed by the respondent before the Delhi High Court and a petition seeking guardianship of the child before the learned Additional District Judge, Jhajjar, which was later withdrawn by the respondent and filed before the District Court of Gurgaon. A reply was filed by the appellant opposing the application on the ground that the respondent was the one who deserted the child. The learned Civil Judge on May 2, 2002 ordered the dismissal of the application for interim custody, and the court reasoned that any disturbance by changing the custody of the child now would not be conducive to the welfare of the child and would traumatise him and affect the mental health of the child who had already started developing love and affection towards his father and his family members. 

Subsequently, the respondent filed a revision petition before the High Court. The court granted her visitation rights by order dated September 30, 2002, and continued the interim custody of the child with the appellant. The following terms were laid down for the visitation rights as fixed by the High Court:

  1. Every last Saturday of the month – 9 am to 5 pm,
  2. For a week in the same above-mentioned manner in summer vacations,
  3. For one day in Dussehra holidays – 9am to 5pm,
  4. For one day in Diwali Holidays – 9 am to 5 pm.

Further, a contempt petition was filed by the respondent for violation of the above-mentioned terms by the appellant. The District Judge of Gurgaon allowed the petition of the respondent and gave custody of the child to the respondent. 

Proceedings before the High Court

An appeal was filed by the appellant before the Punjab and Haryana High Court against this order dated January 6, 2007. An interim order was passed by the High Court which stayed the custody order which was granted to the respondent and continued the order relating to visitation rights for the respondent which was previously given. 

According to the appellant, the conviction order passed by the High Court dated March 9, 2005 through which the appellant was convicted for contempt of court was wrong and assailed by the appellant in Criminal Appeal No. 491 of 2006. The District Court noted that the child had remained in the custody of the appellant for a period of 7 years and taking him out of his custody now would seriously affect the sentiments and upbringing of the child but, on the other hand, the child should also not be deprived of the mother’s home and love. 

The appellant took the stand before the High Court that the lower courts did not hold him disabled in his role as a father and, thus, there was no perfect reason for the court to grant custody of the child to the respondent. The only fact that the respondent is the mother of the child cannot be considered for allowing that petition of custody to the respondent. It was also submitted that the father is a legal guardian as per Section 6 of the HMGA and the welfare of the child lies with the father, his large income and in his joint family, the child is taken care of by the appellant, his mother, brother and also his brother’s wife and three nephews. The overall development of the child was possible due to the warmth of the joint family and keeping the child away from those surroundings which could have deprived him of love and affection. It was also pointed out that the respondent will not be able to provide a good education for the child with her meagre income and the child is afraid of her mother. It was further submitted against the contempt proceedings by the appellant before the High Court that the appellant was not a criminal and there was no contempt committed by him and the complaints lodged against him were only related to some technical violations. 

On the other hand, the respondent alleged that the appellant had shifted his residence to Bahadurgarh by deception and fraud and the child was snatched from her custody on August 1, 1999. After this, she approached various courts to obtain custody of the child. It was further submitted that the appellant was also convicted for the failure to comply with the orders of interim custody and sentenced to one month’s imprisonment and, though the order of sentence was stayed, the order of conviction still continues to be in force. She also submitted that this conduct of the appellant in disobeying the orders of the court implied that he has no respect for the rule of law and the mere fact of not being financially as strong as the appellant cannot be considered for denying the custody of the child to her. She also pointed out that the appellant did not have any fixed residence and he shifted from Delhi to Bahadurgarh and then to Gurgaon and back to Delhi where he claims to reside but the same is owned by his brother. She further alleged that the appellant had deliberately poisoned the mind of the child against the respondent. 

After all these contentions by both parties, the High Court considered Section 13 of the HMGA, which provides for the foundation of the child’s custody. The High Court noticed and tried to answer the question- “Should the child be permitted to stay with the father, who inculcates fear and apprehension in the mind of a minor, against his mother and thwarts court orders with impunity?” The High Court answered the same negatively and noted that “the daily trauma the child appears to undergo while being tutored against the mother would be in excess of the trauma likely to be faced while entrusting to the respondent”. The High Court also observed that the minor child should be allowed to grow with a healthy regard to both the parents and any parent, who poisoned his mind against the other parent, cannot be said to be acting in the welfare of the minor. Thus, the court also upheld the decision of grant of custody to the respondent. Against this judgement, an appeal had been filed before the Supreme Court by the appellant. 

Issues raised before the Hon’ble Supreme Court

The following major issues were raised before the Supreme Court in this case: 

  1. Whether the High Court was right in upholding the decision of the lower court for granting the custody of the child to the respondent i.e., the mother?
  2. What are the guidelines to be considered while deciding any issue regarding the custody of the child?
  3. What is meant by the “welfare” of the child that is to be considered while deciding on the custody of the child?

Arguments advanced by the parties

Contentions raised by the appellant

While supporting the appeal, the appellant reiterated the stand taken by him before the High Court. The main contentions were:

  1. The Trial Court and also the High Court did not hold the appellant disabled in his role as a father and, thus, there was no perfect reason for the court to grant custody of the child to the respondent.
  2. The only fact that the respondent is the mother of the child cannot be considered for allowing that petition of custody to the respondent.
  3. The father is a legal guardian as per Section 6 of the HMGA and the welfare of the child lies with the father and in his joint family, the child is taken care of by the appellant, his mother, brother and also his brother’s wife and three nephews.
  4. It was also argued that the appellant lives in a posh locality and the house is built on nearly 3000 sq. yards whereas the respondent resides with her parents in a two-bedroom flat. Apart from that the appellant has a good educational background and since the child has been residing for more than seven years with him, the courts should not have directed handing over custody to the respondent.
  5. The respondent will not be able to provide a good education for the child with her meagre income and the child is afraid of her mother.
  6. The child was reluctant to go with the mother and this should also be considered by the court for refusing to grant custody of the child to the mother.
  7. The appellant placed reliance on the case of Mausami Moitra Ganguli vs. Jayant Ganguli (2008) wherein, on similar facts and circumstances, the Supreme Court dismissed the appeal filed by the mother for custody of the child. 

Contentions raised by the respondent

The major contentions raised by the respondent were:

  1. They pointed out that the factual scenario of the case of Mausami Moitra Ganguli vs. Jayant Ganguli was entirely different from the present case and, thus, the same cannot be applied here.
  2. It was also pointed out that the appellant did not have any fixed residence and he shifted from Delhi to Bahadurgarh and then to Gurgaon and back to Delhi where he claims to reside but the same is owned by his brother. The appellant had deliberately poisoned the mind of the child against the respondent.
  3. Further, she was not even aware that the appellant was a divorcee and the first wife was mistreated by the appellant and his family on account of alleged meagre dowry and was ousted from her matrimonial home along with her minor child. 
  4. When the respondent was attending to household chores, the appellant took away their minor child and also sent him to Delhi. The respondent was also kept in illegal confinement at the house of Sh. Bal Kishan Dang from where she managed to escape on August 8, 1999. Due to such conduct of the appellant, various telegrams were sent to the authorities and a complaint was also registered in the Police Station, Sarai Rohilla alleging wrongful confinement and kidnapping of the child. Even the father of the respondent lodged a complaint in the Police Station at Bahadurgarh. 
  5. It was also averred by the respondent that, though the appellant had claimed to be the owner of various companies, he had committed various frauds. 
  6. The respondent also alleged that the appellant played fraud by concealing the fact that he was earlier married and his marriage broke as he similarly tortured the previous wife due to which she committed suicide within 6 months of marriage. The criminal cases involving offences under Sections 498A, 406, 323, 506, 343 and 109 of the Indian Penal Code, 1860 were also pending against the appellant and his family members in the CBI Court, Patiala. 
  7. It was also contended that, when the child was in the custody of the father, he was shifted from one school to another in Haryana and Delhi which also became a hindrance in the proper growth of the child. 
  8. The appellant committed repeated defaults in bringing the child to court on various dates and this was also noted by the Local Commissioner of Police in his report of October 10, 2003. 
  9. It was also contended that the appellant had wilfully disobeyed the orders of the High Court and had poisoned the mind of the child against the mother. 
  10. It was also argued that the respondent- mother may not be as financially sound as the appellant, but that alone cannot disentitle her from the custody of the child. She resides in Gulabi Bagh which is well located and surrounded and there is a park nearby. The colony has 8-10 parks and it is a better location where the child can be well developed. Therefore, it cannot be said that the respondent resides in an area which is unsuitable to the minor child.

Laws discussed in Gaurav Nagpal vs. Sumedha Nagpal (2009)

The main laws and provisions relevant to this case and which were discussed during the hearing of this case are as follows:

Hindu Minority and Guardianship Act, 1956

Section 4 of Hindu Minority and Guardianship Act

This Section covers the important definitions under the Act. Section 4(b) of the Act defines “guardian”. As per the definition, guardian means “a person having the care of the person of a minor or of his property or of both his person and property”. The definition of “guardian” includes the following:

  • A natural guardian as mentioned in Section 6 of the Act, 
  • A guardian appointed by the will of the minor’s father or mother, appointed or declared as such by the court, and 
  • Any person empowered to act as such under any enactment relating to the court of wards. 

The meaning of the term “guardian” was referred to by this court while expanding on the scope of the welfare of the child and deciding on the matter of the guardian of a child. Further, Section 4(a) defines “minor” as a person who has not attained the age of eighteen years. 

Section 6 of Hindu Minority and Guardianship Act

Section 6 talks about the natural guardian of a Hindu minor child. The following categories were given by the Act:

  • For a boy or an unmarried girl, the natural guardian is the father and, after him, the mother. Proviso states that the custody of the child, who is below five years, shall be with the mother;
  • For an illegitimate boy or an illegitimate unmarried girl, the natural guardian is the mother and then the father; and
  • In the case of a married girl, her husband is her natural guardian. 

The appellant referred to this Section and claimed custody of the child back on the ground that he is the natural guardian of the child as per this Section. The court, however, observed that the right of the father as a natural guardian, which is statutorily recognised, may also be refused considering the welfare of the child.

Section 13 of Hindu Minority and Guardianship Act

Section 13 is the most relevant section in this Act which directly mentions that the welfare of minors is to be given paramount consideration while appointing someone as the guardian of the child. The court also reiterated the same in the present case and gave a liberal construction and the widest meaning to the word “welfare”. It was held that, in custody matters relating to a child, a proper balance should be maintained between the rights of both the parents and the welfare of the child and the choice made by the child is held to be important while considering his welfare. 

Guardians and Wards Act, 1890

Section 4 of Guardians and Wards Act

Section 4(1) of the Act defines a minor as a person who has not yet attained the age of majority under the provisions of the Indian Majority Act, 1875. Further, Section 4(3) defines “ward” as a minor for whose person or property, or both, there is a guardian. 

Section 7 of Guardians and Wards Act

While considering the object and purpose of the Guardianship and Wards Act, 1890, the court highlighted the scope of Section 7 which talks about the power of the court to make orders as to guardianship while keeping in mind the welfare of the child. The court noted that the purpose of the Act is not merely physical custody of the minor but it includes the due protection of the rights of the health, maintenance and education of the child. 

Section 17 of Guardians and Wards Act

Similarly, the court also referred to Section 17 of the Act which highlighted the matters to be considered by the court while appointing a guardian of a child. It states that the court should act in a manner and be guided by what appears in the circumstances to be for the welfare of the minor. While considering what is relevant for the welfare of the child, the court should give regard to the age, sex and religion of the child, and the capacity and character of the proposed guardian. If the child is mature enough to make an intelligent decision regarding his/her custody, then the court may consider his/her preference. It also states that no person should be appointed as a guardian against the will. 

Sections 10 and 13-A of the Hindu Marriage Act, 1955

Before the question of custody of the child, the proceedings relating to divorce and judicial separation were going on between the parties and the court also talked on the same and stated that there should be conciliation in judicial separation and divorce proceedings in the interests of the child. Section 10 talks about the decree of judicial separation that could be passed by the court on the presentation of a petition on any grounds as mentioned under Section 13(1) of the Act. Further, Section 13-A talks about the alternative relief of judicial separation in cases of divorce. 

Section 2(b) of the Contempt of Courts Act, 1971 

Section 2(b) defines civil contempt as “wilful disobedience to any judgement, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court”. In this case, the appellant (husband) was convicted for contempt of directions given by the court regarding custody of the child. The Supreme Court further noted that the contempt sentence in matrimonial disputes can be modified for the welfare of the child. The High Court convicted the appellant for flouting court orders with regard to the visitation rights of the mother. However, later the sentence of imprisonment was restricted to the period already undergone by the Supreme Court in the interests of the child. 

Judgement in Gaurav Nagpal vs. Sumedha Nagpal (2009)

The judgement was delivered by the Hon’ble Supreme Court. The Supreme Court held that the conclusion given by the Punjab and Haryana High Court, while granting custody to the mother, does not suffer from any infirmity. Even if the mother does not have sufficient financial ability to maintain the child, the father can be asked to pay for the educational expenses of the child in addition to the maintenance for the respondent. The Supreme Court also granted visitation rights to the father, partially modified the order of the District Judge and the High Court; imposed a cost of ₹ 25,000 on the appellant. The visitation rights given to the appellant were as follows:

  1. During long vacations of more than two weeks, the child will be in the custody of the father for seven days.
  2. The period will be determined by the father after intimation to the mother.
  3. For two times every month, Saturday or Sunday or any festival day, the father shall be allowed to visit the child from morning to evening and it will be the duty of the father to take the child and leave him back at the mother’s place.

Regarding the contempt of court charges, the Supreme Court upheld the finding of guilt of the appellant for disobeying the order of the court and committing the contempt. However, the court restricted the sentence of the appellant to the period already undergone by him.

Rationale behind the judgement

The Supreme Court first dealt with the law regarding custody in various countries including English Law and American Law. 

Under English Law

The court referred to Halsbury’s Law of England and quoted- “Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor’s welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father’s claim in respect of that custody or upbringing is superior to that of the mother, or the mother’s claim is superior to that of the father.” The court noted that, if the minor is capable of exercising his choice, the court must consider his wishes before granting the custody order. 

Under American Law

The court also noted that the American Law is not different from the English Law. It quoted from the case of Howarth vs. Northcott (1965)– “The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement or restraint as contemplated by the ancient common law writ, or by statute, but the primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the child, and the decision is reached by a consideration of the equities involved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate.”

Under Indian law

Further, it determined that the legal position in India also follows the above law. Further, the court, after referring to all the above-explained provisions under Indian Law, concluded that the principles enshrined for the custody matters of a child have to be considered by every court and the paramount consideration must be given to the welfare of the child, not the rights of the parents. The court stated that, merely because a father is a natural guardian, it cannot supersede the paramount consideration given to the welfare of the child. The same was highlighted in the case of Surinder Kaur Sandhu vs. Harbax Singh Sandhu (1984).

Court’s observations on the writ of habeas corpus

Regarding the habeas corpus, the court noted that a writ of habeas corpus can also be sought for custody of a minor child. In such cases also, the paramount consideration which is required to be kept in view by a writ-court is ‘welfare of the child’. It was also highlighted that generally, the basis for issuance of a writ of habeas corpus is an illegal detention; but in the case where such a writ is asked for the detention of a child, the law is concerned not so much with the illegality of the detention but with the welfare of the child.

The interpretation of “welfare”

The court observed that a parent cannot be granted custody only because there is no defect in his care and attachment towards the child and children are not considered to be the mere chattels or toys of the parents. Thus, there should be a proper balance between the requirements of the welfare of the child and the rights of parents on the other side. Further, the court expanded the meaning of the word “welfare”. The word “welfare” as mentioned under Section 13 of the HMGA should be construed literally and in its widest sense. The court should consider both the moral and ethical welfare of the child and also the physical well-being. 

Analysis of the judgement 

This case stands as an example for giving the priority to the welfare of the child over the rights of the parents in child custody cases. The Supreme Court has emphasised enough that the paramount consideration in custody matters is the child’s welfare. In this case, the court considered that the father could not provide substantial evidence to prove that mother’s care was detrimental to the child but instead was held to be poisoning the mind of the child against the mother. 

Even though the mother was not able to provide assistance for the child properly due to financial difficulties, it cannot be considered as a ground for refusing the custody to the mother and instead maintenance from father was proposed as a perfect solution in such cases. The court took an appropriate stand by considering the welfare of the child and the rights of both the parents by allowing for the visitation rights to the father as well. 

Recent judgement which referred to Gaurav Nagpal vs. Sumedha Nagpal (2009)

Ramneesh Pal Singh vs. Sugandhi Aggarwal (2024)

Facts of the case

In this case, the parties were married in 2002 and have two children. The father was posted in Jammu and Kashmir and it was decided that the children will live with their mother in New Delhi. Their relationship was not going well and, finally, on August 8, 2015, the wife decided to leave her matrimonial home for one night. Upon returning on the next day and finding the house locked, she filed a missing children’s report and also an application under Section 12 of the Protection of Women from Domestic Violence Act, 2005. Further, a petition under Sections 7, 9 and 25 of the GWA was also filed seeking custody of the children. A similar application for custody was also filed by the father which was transferred to the Family Court of Delhi from the Family Court, Bikaner, Rajasthan. The interim custody of the children was granted by the court to the mother. This was stayed by the High Court of Delhi and custody was given to the mother on alternative weekends. Shared custody was given to both parents by the High Court. Against the same, the father filed an appeal before the Supreme Court of India.

Judgement of the case

The Supreme Court in this case reiterated that the main consideration for the courts, while deciding any application for guardianship, is the welfare of the children. The court also referred to the present case of Gaurav Nagpal vs. Sumedha Nagpal (2009) while considering the term “welfare”. The court noted that the children of the parties were well informed and well educated while residing with their father and even the minor child was well settled and they have expressed their strong desire to reside with the father. Though such desire of children cannot in itself be determinative of custody, it must be given due weightage while deciding on the custody. Thus, the Supreme Court held that the High Court was wrong in interfering with the judgement given by the Family Court which granted custody to the father. 

Conclusion

The case of Gaurav Nagpal vs. Sumedha Nagpal (2009) is a significant legal dispute concerning child custody. The Supreme Court emphasised that, in matters of child custody, the paramount consideration should be the welfare of the child. The court highlighted that the child’s welfare encompasses various factors, including the child’s health, education, emotional development, and overall well-being. The court pointed out that the custody arrangement should not be influenced solely by the parents’ legal rights but should primarily focus on what is in the best interest of the child.

This judgement referred to the principle that, in custody battles, the child’s best interests take precedence over the parents’ preferences or disputes. It reaffirms the judiciary’s role in ensuring that custody decisions prioritise the child’s welfare, stability, and holistic development, reinforcing the notion that every child has the right to a nurturing and supportive environment. This decision highlights the judiciary’s commitment to prioritise the child’s holistic development and stability over the parents’ individual claims. The judgement serves as a precedent, emphasising that, in all custody disputes, the child’s welfare should remain the central focus.

Frequently Asked Questions (FAQs)

What should be the priority of the courts while deciding the issue regarding the custody of the child?

The court is bound to consider the welfare of the child first as per Section 13 of the Hindu Minority and Guardianship Act, 1956 which is of paramount consideration while deciding any issue on custody of the child and then the other factors that would contribute to the growth and development of the child must be considered. 

What is meant by the “welfare” of the child?

The word “welfare” as mentioned under Section 13 of the Hindu Minority and Guardianship Act, 1956 should be construed literally and in its widest sense. The court should consider both the moral and ethical welfare of the child and also the physical well-being. 

Is it necessary to give the custody of the child to his/her natural guardian?

No, the court in this case also stated that it is not a rule to grant custody of the child to the natural guardian and the custody will be given based on the welfare of the child. 

What is the general rule regarding the natural guardian of a child?

According to Section 6 of the Hindu Minority and Guardianship Act, 1956, the father is the natural guardian of a boy and an unmarried daughter and, after him, the mother is the natural guardian. 

Who is the natural guardian of a child below the age of five years?

A mother is a natural guardian of a child, who is below the age of five years, as per the proviso to Section 6 of the Hindu Minority and Guardianship Act, 1956.

Which is the secular law governing the matters of custody and guardianship of children?

The Guardians and Wards Act, 1890 is a secular act which governs the matters relating to custody and guardianship of a child. 

Which law governs the custody matters in case of marriages registered under the Special Marriage Act, 1954?

Section 38 of the Special Marriage Act, 1954 empowers the District Court to issue orders in the cases of custody, maintenance and education of minor children when the marriages are registered under the Special Marriage Act, 1954.

What are the twin objectives of the “welfare principle”?

The “welfare principle” is aimed at ensuring the growth and development of the child in the best environment at the first instance and the public interest that stands served with the optimal growth of the child who is the future of the nation. 

In which judgement, it was held that the rule of estoppel is not applicable to the custody orders?

In the case of Rosy Jacob vs. Jacob A. Chakramakkal (1973), it was held that the estoppel is not applicable to the custody orders even when the order is passed with consent of the child and considering the welfare of the child. 

References

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