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Welfare of Child in Custody Battles

  • By Aashna Mehra
  • September 23, 2022

Article Published in LinkedIn.

“A child’s best interest and welfare are of a paramount importance in custody battles and that the courts must choose a course which will provide healthy growth, development and education” which will equip the youngsters to face problems of life as a mature adult.


It should be an inevitable duty of  the society to give prime importance as far as welfare of the children are concerned. The word “welfare” includes physical and mental welfare. The element of welfare of children has been articulated in plethora of the judgements of the Hon’ble Supreme Court and various High Courts of the country. The main point that  should be considered is that the well – being and the welfare of the child must get precedence over the individual or personal rights of the parents. It is also not denied that a custody dispute involves human issues which are always complex and complicated and what is in the welfare of the child depends on several factors. There can never be a strait jacket formula to decide the issue of custody of   a minor child as what is in the paramount interest of a minor is always a question of fact. 


Examination of the child is of utmost importance. The examination by the court of the child in order to ascertain his wish as to with whom he wants to stay is important and desirable but such decision should not be forceful and be  without any undue influence of either of the parents. Apart from the statutory provision in the form of sub- section (3) of Section 17 of the Guardians and Wards Act, 1890 such examination also helps the court in performing onerous duty, in exercising discretionary jurisdiction and in deciding the delicate issue of custody of a tender-aged child.


The cases pertaining to custody of the minor child,  is not impelled by statues nor by strict rules of evidence or procedure and neither  by precedents. The Hon’ble courts must give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and welcoming surroundings. It would also be important to mention here that physical comforts, ethical values and moral values cannot be ignored.[1]

The integral factors which should be considered by the Hon’ble courts on the aspect of the welfare of the children and equally for the parents can be, inter alia, delineated, such as (1) maturity and

[1] Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413

judgement, (2) mental stability, (3) ability to provide access to schools, (4) moral character, (5) ability to provide continuing involvement in the community, (6) financial sufficiency and relationship with the child.[2]


I feel that both the parents (mother and father) should be seen as the natural guardians of the minor child instead of father being the sole guardian. The child custody is a human problem which is required to be solved with a human touch. The minor children are solely dependent for their well-  being on their elders  and their future depends on the opportunities that they get during  their childhood.

Divorce and battles relating to custody can become a dilemma and it is tormenting to see the innocent minor child who is not even at fault  getting caught up in the legal battles of their parents. A great amount of focus on the child’s rights should be considered as a necessary step towards looking into this special situation demanding special articulation of child rights.

Hence, while resolving various aspects of legislation, it should be kept in mind that the welfare of the child along with social security should be the prime motive in a child custody battle.

[2] Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311

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