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(ii) Indeterminacy of the Welfare standard

2.3.9 While the welfare principle is used extensively by appellate courts dealing with custody issues, there is no evidence of the extent of its use by the lower courts. Based on a study of Family Court orders, legal academician Asha Bajpai notes, The best interest of the child may have been considered by the courts, but there was no mention of this standard in the orders.

The courts did not give any information regarding the factors that they considered or their reasons for awarding custody. The orders just mentioned to whom custody was awarded in a particular case. Asha Bajpai, Custody and Guardianship of Children in India, 39(2) Family Law Quarterly 441, 447 (2005).

2.3.10 The problem with respect to the welfare principle is that, despite its extensive invocation, the appellate judicial decisions do not illuminate the legal content of this principle. Family Law scholars note that while there are illustrations galore, no principled basis can be found in the manner in which courts use the welfare of the child standard. Legal academician Archana Parashar analyzed Supreme Court judgements from 1959 to 2000 that used the best-interest principle in custody disputes.

Parashar concluded that, in the absence of legislative guidance regarding what factors should be used to assess the best interest of a minor, courts give varied interpretations based on their personal ideas about what is best for the children and notions of ideal parenthood.54 For instance, there are contradictory judgements on whether the financial capacity of a parent is a relevant factor in deciding custody.

In Rosy Jacob v. Jacob A Chakramakkak [AIR 1973 SC 2090] the Supreme Court gave custody of the children to the mother because she was economically well off and hence, would be able to take care of the children. In Bhagya Lakshmi v. Narayan Rao [AIR 1983 Mad 9], the Madras High Court gave custody to the father, since he had the means to provide the best comfort and education to the children.

In Ashok Samjibhai Dharod v. Neeta Ashok Dharod [II (2001) DMC 48 Bom] the Bombay High Court held that affluence of the father or his relatives is not a factor in his favour for giving him custody. Indeed, a large number of judgements have established precedents in favour of the mother. But as Parashar rightly notes, these decisions are also based on the judges' perceptions of who is a 'good' mother. Consequently women who do not fit such criteria would have difficulty claiming custody of children.

54 Archana Parashar, Welfare of Child in Family Laws-India and Australia, 1(1) Nalsar Law Review 49, 49 (2003).

2.3.11 The wide discretion available to judges under the welfare principle also means that certain issues that should merit consideration are not treated seriously while determining custody. Allegations of sexual abuse against female children by fathers, grandfathers or other male relatives are brushed aside without any investigation, if they appear improbable to the judge.56

Legal scholar and activist Flavia Agnes notes in this regard that "the courts must exercise their power with great prudence and caution, so that it does not result in violation of the basic human right of children, the right to life, which includes the right to live without fear and trauma."57 The determinants of the welfare standard should therefore be clearly laid down so as to prevent judges from disregarding certain issues while determining custody and access.

56 Flavia Agnes, Family Law II: Marriage, Divorce and Matrimonial Litigation (2011), Oxford University Press: New Delhi, Pp. 257-259.

57 Id., at 259.

2.3.12 This chapter has reviewed the legal framework governing guardianship and custody in India, and has identified two areas that require legislative reform. The next chapter discusses the concept of shared custody based on examples from other jurisdictions.