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Report No. 83

6.73. Right not absolute.-

This shows the right of the husband to custody is not an absolute one. This naturally raises the question whether clause (a) of section 19 should be allowed to continue in its present sweeping form. We would have made a specific recommendation on the subject so as to avoid conflict with personal law, particularly in a matter where the present law goes beyond the best interests of the child. However, if our recourtmendation1 to save the jurisdiction of the Court in regard to custody on a consideration of the welfare of the minor is accepted, the conflict referred to above would cease to have any practical importance.

Incidentally, this particular problem does not arise in England, since the "law to which the minor may be subject" is superseded by the mandatory statutory rule which regards the welfare of the child as paramount.

1. Paras. 6.59 to 6.61, supra.

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

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