Report No. 133

Delhi Case

(5) In a Delhi case1, the welfare principle was ignored by the trial court but was applied by the High Court in appeal. The mother of a boy, aged about 5 years, applied under section 6 of the Hindu Minority and Guardianship Act for the custody of the child, but the trial court dismissed her application. The view taken by the trial court was that the fact that the child was only 3 years old did not mean that the father could not keep him in his custody; the child was not being suckled. But the High Court, in appeal, awarded the custody to the mother.

Discussing in detail the welfare principle, the High Court stressed the fact that such a child needs the most tender affection, the caressing hand and the company of his natural mother, and neither the father nor his female relations, however close they may be, and however well meaning and affectionate they may be towards the minor, can appropriately serve as a proper substitute for the minor's natural mother.

The High Court pointed out that in this case the child was of 5 years and the mother had been rightly endowed by the Hindu Minority and Guardianship Act with a preferential claim in regard to custody. In the absence of special circumstances which may suggest that the welfare of the minor demanded that his custody should not be entrusted to his natural mother, the court was not justified in depriving her of the minor child's custody and in entrusting it to the father.

1. Chander Prabha v. Prem Nath Kapur, AIR 1969 Del 283.