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Report No. 257

B. Judicial Interpretations

2.3.1 The Supreme Court of India, Mausami Ganguli v. Jayant Ganguli, (2008) 7 SCC 673 and almost all of the High Courts have held that, in custody disputes, the concern for the best interest/welfare of the child supersedes even the statutory provisions on the subject outlined above. While the older cases under the GWA unequivocally hold that the father can be deprived of his position as the natural guardian only if he is found to be unfit for guardianship, there are many cases where the courts have made exceptions to this notion.

2.3.2 Some illustrative examples are as follows. In a 1950 decision under the GWA, the Madras High Court awarded custody to the mother based on the welfare principle, even though the father was not found unfit to be a guardian, Soora Beddi v. Cheema Reddy, AIR 1950 Mad 306. Courts have held that in deciding custody, children should not be uprooted from their familiar surroundings just to give effect to the father's right to natural guardianship, Vegesina Venkata Narasiah v. Chintalpati, AIR 1971 AP 134.

In a case where the child was brought up by the maternal grandparents after the death of the mother, the Andhra Pradesh High Court held that, in view of Article 21 of the Constitution, children cannot be treated as chattel and the father's unconditional right to the custody over children and their property cannot be enforced, even if the father was not unfit to act as the guardian, L. Chandran v. Venkatalakshmi, AIR 1981 AP 1.

Where both parents of the child were dead and the paternal relations claimed custody of the child who was residing with the maternal relations, the Calcutta High Court held that welfare of the minor was the paramount concern, and the paternal relations did not have a preferential position in matters of custody, Satyandra Nath v. B. Chakraborthy, AIR 1981 Cal 701. There are similar examples from other High Courts as well.

2.3.3 In deciding cases involving Muslim children, High Courts have decided in favour of the mother only when her right to custody was supported by Muslim law. In Suharabi v. D. Mohammed, AIR 1988 Ker 36 where the father objected to the mother's custody of the one-and-a-half year-old daughter on the ground that she was poor, the Kerala High Court held that the mother was authorized to have custody of a daughter of that age under Islamic law.

In similar vein, in Md. Jameel Ahmed Ansari v. Ishrath Sajeeda, AIR 1983 AP 106 the Andhra Pradesh High Court awarded the custody of an eleven-year-old boy to the father, on the ground that Muslim law allowed the mother to have exclusive custody only until the age of seven in case of male children, and there was nothing to prove that the father was unfit to be a guardian in this case. In another case, the Madhya Pradesh High Court interpreted Mahomedan Law to allow custody for the mother, Mumtaz Begum v. Mubarak Hussain, AIR 1986 MP 221.

2.3.4 Two problems can be noted with the legal and judicial framework described above. The first is the superior position of the father in case of guardianship, though not necessarily in case of custody. The second is the indeterminacy of the welfare of the child principle, despite its widespread usage.



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