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Report No. 133

Mysore Case

(8) In a Mysore case,1 the father applied under section 26 of the Hindu Marriage Act for the custody of a girl aged about 31/2 years (in the course of proceedings for restitution). The trial court allowed the application, but, on appeal by the mother, the High Court awarded the custody to the mother. The High Court held that under section 26 of the Hindu Marriage Act, in so for as it relates to the custody of a minor child, the primary and paramount consideration (though not the sole consideration for the court) must be the welfare of the minor child. The question was not so much of the rights of the parents, as of the child's welfare. To take away the child from the mother would place mental strain on the child.

1. Radha Bai v. Surendra K. Mudaliar, AIR 1971 Mys 69 (70, 71), paras. 6-8 (Malimath, J).

Removal of Discrimination against Women in matters relating to Guardianship and Custody of Minor Children and elaboration of the Welfare Principle Back

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