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Report No. 133

Rajasthan Case

(11) More recently, we have a Rajasthan case1 in which also the trial court applied the welfare principle narrowly and its decision had to be corrected by the High Court in appeal. The father had applied for the custody of two children a son aged about 11 years and a daughter aged about 14 years. Partly allowing the application, the trial court awarded the custody of the son to the father.

The mother appealed to the High Court and succeeded. According to the High Court, the father's fitness has to be considered, determined and weighed predominantly in terms of the child's welfare. If the custody of the father cannot promote the welfare of the minor equally as, or better than, the custody of the mother, then he cannot claim an indefeasible right to the minor's custody under section 25 of the Act of 1890 merely because there is no defect in his capacity to look after the minor.

1. Gangabai v. Bherulal, AIR 1976 Raj 153 (155, 156) (V.P. Tyagi, Actg, C.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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