Welfare Of The Child Principle Under Indian Laws

In the cases where there is separation or division of a married couple, one of the most significant things to be considered, by the courts and the parents, is the welfare of the child i.e. the child's best interests. There are numerous laws that administer the custody of a child. An individual can look for care under the Hindu Minority and Guardianship Act, 1956; Guardian and Wards Act,1890. Different acts stipulate that the regular guardian of the child is his father. Likewise, similar acts state that the authority of minors till a particular age ought to be with the mother. These elements are currently viewed as less significant and another idea “Welfare of the Child” has become the foundation in choosing child guardianship.

The Guardians and Wards Act was authorized in 1890 which proceeded with the inheritance of Common law, of the dominance of the fatherly right in guardianship and care of kids. Sections 7 and 17 of the Act given that courts should act in the facilitation of the welfare of the minor. Sections 19 and 25 under the original act subjected the equivalent to the dominance of the father. Significant changes are prescribed to the Guardians and Wards Act, 1890, by presenting another chapter regarding visitation provisions and the custody of a child by the Law Commission of India under report number 257.

The Hindu Adoption and Maintenance Act gives that “Before granting permission to a guardian under subsection (4), the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.”[1] It is just the Hindu Minority and Guardianship Act, 1956 under Section 13(1) which says that the welfare of the minor will be the central thought overriding every other factor. The Juvenile Justice Act, 2000 gives child welfare committees appointed by the State government in each area with the duty of guaranteeing the restoration and assurance of the children who need care for the purpose of well being of kids.

According to the welfare principle, the Supreme Court has seen that each case must be settled on its own realities and other concluded cases can barely fill in as restricting points of reference to the extent that the truthful parts of the case are concerned. India isn't a part of the U.N. Convention on the Civil Aspects of International Child Abduction. Without being a signatory to the Convention or not having laws, Indian courts have managed instances of parental abduction of a child as common custodial questions. Habeas Corpus petitions under Article 226 or 32 are documented as applications for care under Guardians and Wards Act.

The Bombay High Court in the case of Carla Gannon v. Shabaz Farukh Allarakhia[2] held that the kid's welfare is the supreme thought, regardless of the rights and wrongs of its fighting guardians, in spite of the fact that the common privileges of the guardians are qualified for consideration. This was hearing of a habeas corpus appeal recorded by the mother to deliver the youngster supposedly kidnapped by the father. In Satyandra Nath v. B. Chakraborthy[3] where the two guardians of the youngster were dead and the fatherly relations asserted authority of the kid who was dwelling with the maternal relations, the Calcutta High Court held that welfare of the minor was the vital concern, and the fatherly relations didn't have a dominating position in issues of custody. In the cases regarding Muslim children, high Courts have ruled for the mother just when her entitlement to care was bolstered by Muslim law.

This principle focuses on the concept of a child having rights but there is no instance of giving any power of making decisions to the child. In any appraisal of what is best for the child, it is fundamental that the kid herself or himself be permitted to communicate a conclusion and that supposition is seriously taken.

[The author, Divya Vishal is a law student at National University of Study and Research In Law, Ranchi]

1. Section 9(5) of The Hindu Adoptions and Maintenance Act, 1956
2. Carla Gannon v. Shabaz Farukh Allarakhia, Criminal Writ Petition No. 509 of 2009 (Bom. H.C.).
3. Satyandra Nath v. B. Chakraborthy, AIR 1981 Cal 206