Chapter one : Introduction
The theory of "best interest of the child" is a core idea in the global children's rights campaign, and it is most commonly applied in family law cases involving custody, parental rights, maintenance, and child adoption, etc. When regulations, legislation, and judgments that facilitate or hinder children are made, the overarching message including its principle is that the child's political, economic, and social interests should be given due consideration with preference. The Geneva Declaration on the Rights of the Child of 1924 and the United Nations (UN) Declaration on the Rights of the Child of 1959 were among the first to have explicitly include this notion and make its signatories abide by the same. It seems to be more of a pillar to the movement of child rights and has been apprised by both Convention Of the rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of Children from 1990. In UNCRC there are 54 articles that seemingly grapple to enhance the reach of children's rights and instruct the government to intervene if they are violated. While granting custody or guardianship rights to anyone in India, courts must follow just about all the clauses. The Children's Act of 1989 was written to lay out a few of the considerations that must be made for both the welfare of a child in a guardianship and custody situation. The legislation was made in the United Kingdom, but it has been used in India on many occasions.This deals with the issue of child custody or guardianship, as well as where they receive the best care and have access to all amenities, whether in their own families or in some other families. Also if family that is bound by the provisions of this Act commits any default, this Act also lays down provisions for the child's upkeep. Besides of a very narrow jurisprudential roots, the best interests of the child principle is expressed in several national and legal systems in one form rather than another, and has significant equivalents in a variety of cultural, religion, as well as other rituals. Although, this obvious communitarianism is characterised by a wide variety of interpretations of the concept in various contexts.
For instance, The welfare principle is stated in Section 13 of the Hindu Minorities and Guardianship Act, 1956, when a child or any individual who involves taking care of himself or his property is placed into guardianship. The legislation stipulates that every guardian nominated by parent, will, or law must be nominated before considering that the nomination is intended and for welfare and best interests of the child and therefore will not inflict any harm to children. As it was settled in the case of, Gaurav Nagpal vs. Sumedha Nagpal, In this dispute, the court decided that the child's welfare comes first, and the parents' rights under the law in effect at the time, or what the parties claim, take second place. The child's desires, happiness with both the guardians, safety, children's education and association with both the guardian, comfort level, and cultural faith must all be taken into account by the Court. If it is not positioned above another, all of these must be given equal weight.
Chapter two : Welfare of the Child Standard or Best Interest of the Child
In a majority of countries worldwide, the best interest of the child principle is implemented. The best interests of the child must be a chief goal throughout all acts involving children, either conducted by publicly funded social care agencies, courts of law, regulatory agencies, or legislative bodies, as per the Convention on the Rights of the Child. The best interests of the child, referring to the UNHRC, is a substitute for a child's well-being centred on a number of situations set out under the Convention. As a policy criterion, welfare is inherently versatile, adaptable, and representative of current societal attitudes toward family. The best interest of the child standard, nevertheless, has two major flaws. For starters, it is volatile and needs a lot of knowledge. Divorcing parents are indeed left in the dark about how the courts would treat the child custody dispute; it can pave to needless pre-court negotiation, that can be detrimental also to the parents and the children. A more structured rule-based norm could mitigate this issue. A rule-based standard, on the other hand, is probably to be static and ignore the special situation in each scenario. Secondly, the principal puts emphasis mostly on child's conditions, leaving out the guardians' actions and intents. Family constitutes of both parents and children and the former also play a part in it. The Guardians and Wards Act of 1890, as well as the various personal laws (including their legislative modifications) associated with specific religious groups in India, govern or supervise the guardianship of children.
Chapter three : The Guardians and Wards Act of 1890 and personal laws regarding welfare of the children.
The Guardians and Wards Act of 1890 was adopted with the purpose of amending and consolidating the field's already sparse legal provisions prior to its passage. This legislation was enacted in preference to, not in lieu of, the provisions of various personal laws relating to child guardianship. As a result, it operates alongside the rules of the personal laws governing different sects . The Act expressly states that it does not override the laws of personal law. (However, all requests for the appointing or proclamation of a guardian must be submitted in accordance with its regulations.) Whenever a request to appoint a guardian of a children is submitted underneath the Act, it takes effect, and it takes precedence over personal law in the event of a dispute. The Act of 1890 defines two types of guardian: first being personal guardians and second being property guardians. All roles can be filled by the same individuals. A guardian may well be nominated underneath the Act in the case of any person who is a "minor" under the Indian Majority Act, that is, a person under the age of 18, or under the supervision of the Court of Wards, who is under the age of 21.
The Legislation says that even if the judge finds that this is in the best interests of a child to make an order appointing a guardian of his person or property, or declaring a person to become such a guardian, the judiciary may use it. As a result, the court may "appoint" a guardian or "declare" that someone is the guardians of a specific child. A guardian, whether appointed by the court previously or behaving underneath a will and otherwise, may well be removed by the judiciary. Just the applicant of guardianship, a relative or friend of the minor, the district collector, or a special collector can request an order appointing or announcing a guardian. When the request for order is to be granted, it must include all of the information required by the Act, such as the child's religion. The Act establishes a process for the admittance of the application, such as its public disclosure. The judge will decide interim and interlocutory orders before making a final order. The welfare of the child will be considered by the court when appointing a guardian, in conformity with the act under which he is subject. This could nominate one or even more guardians in compliance with the appropriate personal law, but if the ward contains multiple properties, this could nominate diverse individuals for each property. The Act therefore lends support to the child's personal law as long as it is in the child's best interests as well as when the guardian isn't seeming as really unfit to be assigned. The welfare of the child is the most important factor.
The following factors that are to be taken into account while determining the welfare of a child or a minor:
- Desires of a child, only if he or she is old enough to make requests or claims on behalf of himself.
- Age: When deciding to choose whether or not give someone guardianship of a child, the age of the child is a major consideration. A mother is generally appointed as that of the guardian if the children is quite young.
- Gender: The gender of the child should be considered when choosing a guardian. Because when infant is a female, the guardian must have a female in his or her home. In the matter of Komal v. Mohan Kumar Rayana, the judge noted a query about the toddler named Anisha from Mohan Rayana. The child’s mother who was supposed to be the respondent, argued and claimed that she'd be granted or given custody of her child for the infant’s own benefit. The judge stated that the plaintiff, the father, was a very successful entrepreneur who was frequently required to travel abroad and therefore could not spend much time to the infant. Despite the child in question had no issues with both of her parents and liked their company, her greatest wish was for her parents to reconcile following their divorce. However, this court emphasised that perhaps the infant was just a girl who would reasonably require companies of a mother. However the father acquired some visitation rights to meet his daughter. The mother is only withdrawn from guardianship in extraordinary cases, such as when there's really evidence of foul play or failure to perform responsibilities mostly on mother's part. The court held in the case of Atharv Hussain v. Syed Siraj Ahmed that the judiciary is responsible for determining if the child is in lawful custody. The court must determine whether custody is for a 3rd party who isn't even a natural guardian in a particular scenario, like a natural guardian can still have a lawful authority to the kid's custody. This one inherent guardian is the birth mother. There are about those few occasions when guardianship is changed after this fact is discovered, and only in rare circumstances will guardianship of the infant will be solely eliminated from the hands of the mother.
- Medications: Any drugs which the kid may need should be communicated to the individual who will be granted guardianship. court in the case of Mercein v. People gave custody of the girl child to her parent, mother because as she's too ailed for her father to care for her. The judge made its decision on the matter as well, based on the ‘best interests of the child.
- Religion, faith and culture: Before a guardian is appointed, religious and cultural considerations must be taken into account. Typically, a child's guardianship is provided to someone with the same religion so the child can reach adulthood with his or her own religious convictions. Cultural and religious consideration has to be given significant weight, according to a landmark decision. A South African toddler was in the care of a family in the United Kingdom in this case. The judge determined that now the infant should be raised in his own society as well as among his own people. Guardianship became granted to a South African couple because after court determined that it was in the best interests of the child, and the judiciary based its decision on customary procedures instead of another factor.
- Prior child-handling experience is taken into account. Focus is provided to those who have previously cared for children, are familiar with their routines, and will also be able to supply adequate care.
- Guardianship is granted to a persons who has no history of civil or criminal charges against him that could have led in him being barred by legislation from gaining custody of a child. In the matter of Kriti Kumar Joshi v. Pradeep Kumar Joshi, the guardianship was granted without regard for just about any criminal charges. The details of the matter showed that the mother had died, as well as the dad was facing charges of abuse within Section 498A of the Indian Penal, 1860. Furthermore, the child's comments demonstrated that perhaps the mom was subjected to cruelty and often domestic violence by dad. The child's custody wasn’t given to the father but it will be provided to the wife's brother, who really is the dead mother's brother, according to the court. In one instance, the dad was accused with Cruelty beneath Section 498A of the Indian Penal Code, 1860, for allegedly causing the death of his wife. The issue was investigated by the Supreme Court, which found that perhaps the kid did not want to be in the custody of the dad and preferred to be in the care of and with grandparents rather than his own father. So in this case of Nil Ratan Kundu &Anr. vs Abhijit Kundu, the father was eliminated from having the guardianship of his sole child according to the judge, because that would be damaging and bad to the children's health, which seems to be the determining and a considerate factor in granting control or guardianship to an individual.
- The financial circumstances of the individuals requesting guardianship and his or her family. A individual who would support his family, especially his child, is generally preferred by court. The court in Tarun Ranjan Majumdar v. Siddhartha Datta stressed because one of the ground listed above should not be considered the only ground, and that the court should identify alternative grounds to secure the best outcome for the children. In the this case, the father asserted that he has the legal right to custody of his child. The infant was in the custody of his maternal grandparents, and there was no evidence that they were not treating him well. As a result, it cannot be presumed that the father's financial situation will benefit the child because the existing guardians are doing anything they can. Furthermore, which is a well practice if somebody is under someone's guardianship, that guardianship shall not be disturbed for any reason that may be taken to court. Even when a legal guardian has contacted the court for his legal right, the court will not disrupt the child's guardianship if the judge held the explanations are sufficient to see that the child is undisturbed in the current surroundings. In preparation for such a ground to apply, the judicial systems must determine whether the allegations are right or wrong; consequently, the rightful guardian of a child will suffer a miscarriage of justice if untrue accusations are made against him or her. In the matter of Ravi Dadu v. Seema Gupta, the mother of a 4-year-old minor child was seeking custody of the child from the child's grandma, who'd been given custody of the kids just after father passed away underneath questionable circumstances. The mother was accused with allegation of abetting the suicide and common purpose under Section 306 and Section 34 of the Indian Penal Code, 1860. The Judge stated that, while the grandparents would have the financial means to support the child, they believed that financial standing itself wouldn't be the primary factor that determines the son's welfare, starting with the fact that perhaps the mom had been freed of all allegations by another trial. The Judge determined that perhaps the children's custody should be provided to the mom since she's the better person to look just after child's interests and also to raise him.
- Child suffering Damage: Throughout the matter of Jackson v Jackson the judge determined that the mother should have custody of the children after the father tried to take them to Australia alongside him. The mother claimed that the kids would likely suffer emotional harm as a result of their actions. The courts held a number of factors in this case, including the father's arguments about the benefits of moving to Australia, both parties' conduct, and the status quo, before concluding which, although the kids had little issues for either parents, they preferred the mother's parenting, and therefore the court reached a majority verdict.
Chapter four : Elaboration to the Welfare Principle in Guardianship
The popular analysis for welfare principle throughout the cases of J v. C (Infant), in which he described whether courts would contemplate applying their discretion to verify whether the baby is now to be provided to somebody guardianship. He discussed the purpose and understanding of the term "paramount," stating that in a list of items that every judge must consider before granting custody of a child to anyone, there are a few matters that the court must position first and foremost as the preference. When examining all of the influencing factors in a guardianship, such as relationships, the child's or parents' desires, all parties' choices, and so on, the Court must prioritise the child's welfare before granting guardianship privileges to anyone.
The court held in Raj Kumar Gupta v. Barbara Gupta, that only if there is no reason to alter a child's guardianship from one individual to the next, the judges must not do so since it can harm the child. As even a minor change in guardianship can cause or effect the mental state and even harm the children. It can only be undertaken whenever the child's welfare is jeopardised if the guardianship is not changed. The best interests of the children are not the only factor to be considered. Instead, all of the other variables, as well as the child's wishes, must be added together. Some other variables must be of a kind that furthers the welfare principle's goal. The wishes of the child take precedence over the desires of the parents. Furthermore, since it is not specified in the statute, it does not imply that this is the defining factor. All the other questions revolve around whether prioritising a kid's belief that's in any manner unreasonable to the parent' desires.