Report No. 257
A. "Welfare of the Child": Historical Evolution
1.4.1 Traditionally at Common law, the father was considered the sole guardian of the person and property of the child. The authority of the father in every aspect of the child's life, including his/her conduct, education, religion and maintenance, was considered absolute and even the courts refused to interfere with the same. Mothers did not have any authority over children, since mothers did not have independent legal status; their identities being forged with that of their husbands upon marriage.
As divorce became possible and mothers began to have independent legal existence and residence, their claim, if not right, to have custody of the children began to be recognized by the courts. However, despite a series of legislations - starting with the Custody of Infants Act, 1839, in the UK - that enabled the mother to claim custody over minor children, the rights of the father continued to remain supreme.
1.4.2 Two developments aided in the dismantling of paternal authority over children under English law. First, in a number of judicial decisions, the courts claimed the parens patriae jurisdiction - an even higher parental authority of the state - to supersede the natural guardianship of the father and award custody depending on what promoted the welfare of the child. In re, O'Hara, (1990) 2 IR 232. Second, through a series of legislations, the British Parliament shifted the emphasis from paternal rights to the welfare of the child and conferred equal legal status to the father and the mother in determining guardianship and custody.
The Custody of Infants Act, 1873, allowed the mother to have custody of the child till the age of sixteen and removed the restriction on petitions made by mothers who had committed adultery. The Guardianship of Infants Act, 1886, recognized equal rights of the mother over custody, access and appointment of testamentary guardian, and allowed the court to appoint and remove guardians in certain circumstances.
The Guardianship of Infants Act, 1925, put the claims of the mother and the father in a custody dispute on an equal footing and provided that welfare of the infant shall be the "first and paramount consideration". Finally, the Guardianship of Minors Act, 1973, conferred the same rights to the mother that the common law gave to the father; the mother was allowed to exercise these rights without the concurrence of the father. If the parents failed to reach an agreement, then the court is authorized to decide the matter based on the principle of welfare of the child.
1.4.3 In India, the Guardians and Wards Act was enacted in 1890 by the colonial state, which continued the legacy of Common law, of the supremacy of the paternal right in guardianship and custody of children. While Sections 7 and 17 of the Act provided that courts should act in furtherance of the welfare of the minor, Sections 19 and 25 of the original Act, subordinated the same to the supremacy of the father.
It is only the Hindu Minority and Guardianship Act, 1956, enacted by the independent Indian state that provides that welfare of the minor shall be the paramount consideration superseding all other factors. This legal framework is discussed in detail in Chapter 2 of this report.