What are the principle under which the custody of children is determined?

The Courts have special responsibility to protect the minor’s interest and as such, the question of custody of children must be considered only from the point of view of the minor’s interest.

The Court, therefore, may invoke its powers to interview the minor child for ascertaining the wishes of the minor. Even the Hon’ble Judges of apex Court had interviewed the child and passed the appropriate order. But in any event, the ‘Welfare’ of the minor is the only and the only consideration in deciding the custody of children. But the term ‘Welfare’ is the multi faced phenomenon. It includes factors such as physical, emotional and economic conditions.

The important factors which will have to be taken into consideration are Stability, Security, Loving Care, Understanding, Guidance and Warm and Compassionate relationship. These are the essential requirement for the full development of the child’s own character, personality and talents. The apex Court has laid down that the welfare of the child is the deepest concern and consideration in granting the custody of the child.

The physical and mental health should also not be neglected. Merely because the mother is working, she should not be refused custody of female child. Similarly, in another case, it was held that the access of child at regular interval to father cannot be ignored. The Court professed the humanitarian approach in such cases.

Case laws

1. Mother had left matrimonial home when child was 3 years. Family Court gave custody of child to the father and the child was with father since then for 10 years. Father was permanently residing at Allahabad whereas mother was a teacher. She was transferred from Calcutta to Chandigarh, from there to Panipet. It was held that welfare of child is better looked after by father.

2. Father, if financially stable and not disqualified can be given custody of girl child.

3. Family Settlement is treated different from common settlements. Family settlements generally meet with the approval of courts. These are governed by a special equity principles where the terms are fair and benefits to all the well-being of the family. Technical consideration (like limit), etc. should give way to peace and harmony.

4. Family Court was enacted to provide for the establishment of family court with a view to promote conciliation and secure speedy settlement of dispute relief to marriage and family affairs Family courts cannot be equated with the courts constituted under the Consumer Protection Act. However, it is subordinate to High Court.

5. The Family Courts established under the Family Courts Act, 1984 are given the exclusive jurisdiction in respect of matrimonial cases. However, the matrimonial cases of Parsi are not covered under the Family Courts and continue to vest with the High Court, being the Chief Matrimonial Court in Presidency town of Bombay (now Mumbai).