Report No. 133
The Need for Spelling Out Some Important Considerations in the Application of the Welfare Principle and for Amplification of the Relevant Provisions to this End
3.1. Bringing up of a child, providing the physical and emotional needs of the child, and building up the personality and inner world of the child, to enable the child to bring out his or her potential so as to enable the child to make maximum contribution to the welfare of the community when he or she grows up, and to enable him or her to lead a creative and useful life undeterred by the obstacles that may impede his or her path, is the obligation and responsibility of both the parents. It is as much the 'duty' of the father as the 'duty' of the mother.
It is, therefore, somewhat inappropriate to speak in terms of the 'rights' of the father and the mother when the matter reaches the court and the question of appointing a guardian or entrusting the custody of the minor surfaces. The court, acting on behalf of the community, has to resolve the problem keeping in mind the paramount and over-shadowing consideration as regards the 'welfare' of the child. That is why the welfare principle has been projected in section 13 of the Hindu Minority and Guardianship Act as also in section 17 of the Guardians and Wards Act. Reference to these provisions has been made in Chapter II-vide paras. 2.3 and 2.7-It will, however, be expedient to extract the provisions for the sake of ready reference.
3.2. Section 13 of the Hindu Minority and Guardianship Act, 1956 provides:
"13. Welfare of minor to be paramount consideration.-(1) In the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus; if the Court is of opinion that his or her guardianship will not be for the welfare of the minor."
Section 17 of the Guardian and Wards Act, 1890 prescribes:
"17. Matters to be considered by the Court in appointing guardian:
(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2) In considering what will be for the welfare of the minor, the Court shall, have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3) If minor is old enough to form an intelligent preference, the Court may consider that preference.
[Sub-section (4) omitted by Act 3 of 1951]
(5) The Court shall not appoint or declare any person to be a guardian against his will."
The welfare principle has thus received statutory recognition. Since, however, some of the salient and important considerations have not been spelt out, very often, particularly in the trial court, the welfare principle is not correctly interpreted and applied to the fact situation presented by the case coming up before the court. So often if is only when the matter is brought up to the High Court that the welfare principle is applied.
The result is that the vital and sensitive question regarding the guardianship and custody of the minor remains often in a nebulous state for very many years and the custody of the child continues to remain with a person with whom the custody should not remain in the light of the welfare principle. Besides, the contesting parties in many of the matters may not have the resources to take the matter up to the High Court and the interest of the minor suffers detriment. It is in this background that the issue regarding the need to spell out some of the important considerations in the application of the welfare principle in the relevant statute itself needs to be considered.
3.3. In order to substantiate the point that welfare principle is often not applied by the trial court, a few of the reported cases may be usefully examined:-