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Report No. 83

6.61. Welfare paramount under section 25.-

It is not as though, in all cases where the father is not unfit, custody of the child should be left with the father.1 It is the welfare of the child that is paramount.2

The correct approach is that taken in a recent Kerala case3 in which it was held that the only consideration that was paramount, was the welfare of the child and it could not be correct to talk of the "pre-eminent position" of the parents or their exclusive right to the custody of the children when the future welfare of the children was being considered. The fact that the father was not found to be unfit to be a guardian did not necessarily mean that he was entitled to the custody of the child. The position has been largely clarified by the Supreme Court4 in a judgment to which we shall revert later also.5 The Supreme Court observed:

"The father's illness from the point of view just mentioned cannot override considerations of the welfare of the minor children. No doubt the father has been presumed by the statute generally to be better fitted to look after the children-being normally the earning member and head of the family-but the Court has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and education. The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home."

1. Babubhai Patel v. Madavi Pute, (1979) 1 MLJ 244 (250), para. 13.

2. Ainumisa v. Mukhtar Ahmad, AIR 1975 All 67 (reviews cases).

3. Sebastian v. Thomas, 1979 Kerala Law Times 536 (537) (30 July, 1979).

4. Rosy Jacob v. Jacob, AIR 1973 SC 2090 (2100): (1973) 1 SCC 840.

5. Para. 7.16, infra.

The Guardians and Wards Act, 1890 and Certain Provisions of the Hindu Minority and Guardianship Act, 1956 Back

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