Published on 11th August 2025
Authored By: Jiya Sarkar
Sister Nivedita University Newtown, West Bengal
ABSTRACT
The principle of “welfare of the child is of paramount importance” is the cornerstone of Indian child custody law. This paper provides an analysis of the statutory origin, case law evolution, and implementation in practice, based principally on the leading cases from the Supreme Court and High Court. It distils the ideas that courts are considering when there is professional disagreement about welfare. The paper thereafter distinguishes between child welfare, parental rights, and child focused justice, before finishing with some observations about improving the implementation of this principle.
Keywords: Child Welfare, Custody, Paramount importance, Indian Law.
INTRODUCTION
In the Indian legal system, the concept that the welfare of the child is of primal importance is the basis for all decisions relating to custody and guardianship. This doctrine, is embodied within statutory law and judicial precedent, mandates that courts must apply the welfare principle by prioritising the child’s best interests over all competing claims – whether deriving from parental rights, statutory law or personal law[1].
The Indian judiciary has interpreted “welfare” quite broadly, and holistically, emphasising that welfare is beyond just the physical needs of the child to include emotional, moral and psychological needs[2]. Practically, this child centricity requires the judge to consider the individual circumstances of the child, beyond the technical requirements to ascertain that the environment that has been provided is conducive for the growth, development and prosperity of the child[3].
This child welfare dimension is found in prominent judgments and statutory laws relating to the practice of family law in India, reinforcing the idea that the guiding principle in all custody or guardianship orders must be the welfare in its widest sense of newly formed family relationships; be it initial in custody or guardianship processes, or adjustments in the initial arrangements[4].
RESEARCH METHODOLOGY
This paper utilizes a doctrinal research design based on legislation, case law, and academic commentary, which focuses on the law. The legislation has been reviewed, including the Guardians and Wards Act 1890, and the Hindu Minority and Guardianship Act 1956, along with relevant Supreme Court and High Court decisions. The academic commentaries and law review articles, along with the relevant policy papers for child welfare in Family Law, served as secondary sources[5].
LITERATURE REVIEW
Academic literature and judicial commentary overwhelmingly support the position that the welfare of the child is the primary focus of any dispute when considering child custody[6]. There is also a renewed interest in research concerning the progression of the law when it comes to child welfare that fosters child- centric justice rather than parental rights, describing welfare as not merely an issue of physical comfort but in emotional, psychological, and moral growth[7]. Research also identifies the deficiencies in mandated guidelines for statutory purposes, as well as the lack of effective pathways for children’s voice in civil law.
LEGAL FRAMEWORK: A CHILD-CENTRIC APPROACH
In India, the law is unequivocal. When courts are to decide upon care and control of a child, whether appointing a guardian or deciding custody, the welfare of the child is law’s primary concern.
Guardians and Wards Act, 1980
The law applies broadly across religion, and provides that, in accordance with the requirement of Section 17, a court must act in the best interests of the child whenever a decision is made about care or control. Specifically, Section 17 requires the court to take into account the child’s age, sex, and religion in addition to the character or capacity of the person applying for guardianship. Most significantly, if the child is of sufficient maturity, the court will also consider the wishes of the child. In so doing, the courts will ensure that the decision made can be both legalistic, if one wants, but certainly take into consideration the needs and wishes of the child[8].
Hindu Minority and Guardianship Act, 1956
For Hindu children, the law reinforces this principle. Section 13 of the Hindu Minority and Guardianship Act states that the welfare of the child is the most important consideration irrespective of legal or customary rights. Therefore, the courts have to consider what is in the best interests of a child, even if some tradition or personal law indicates a particular guardian or form of custody. In this sense, the law puts the child first[9].
The law represents a present day, child-centric model, and requires courts to concentrate on protecting and nurturing a child example, rather than the complexities of family or religious law.
JUDICIAL UNDERSTANDING AND PROGRESSION
- Supreme Court’s Understanding
The Supreme Court has interpreted the welfare rule as the superseding principle in all custody matters. In Shazia Aman Khan v. State of Orissa, the court found that the child’s emotional stability, her desire to remain residing with her aunt instead of her biological father, outweighed the father’s statutory entitlement, the child’s welfare is the first and primary consideration[10].In Gaurav Nagpal v. Sumedha Nagpal, the Court found that not only physical comfort but also emotional, as well as, moral and ethical welfare also must be included in broader definition of welfare. While the child’s wishes, if determined to be mature enough, must be accounted for, it cannot be determinative[11].
- High Court and Other Judicial Developments
High Court decisions have bolstered the understanding that the welfare of the child is the paramount consideration, and all other circumstances, including parental rights, subsumed to child welfare. [12]Courts have emphasized that financial means alone is not determinative; the emotional and psychological environment is of equal or greater weight.
FACTORS RELEVANT TO THE CONSIDERATION OF WELFARE
Indian Courts have established a multi-dimensional approach to determining the welfare of the child:
- Child’s Age and Sex: Younger child, particularly under age five, is typically placed with the mother although not a rigid policy.
- Child’s Emotional Attachment/Psychological Well-Being: Courts give greater consideration to a stable and nurturing environment, even if departing from strict statutory or biological considerations.
- Educational Opportunities: Court regards lack of accessibility to quality education as significant.
- Home Environment Stability: Courts typically favour home environments with continuity and potential for stability.
- Child’s Wishes: Consideration of children’s wishes increases with age, but maturity is also an important factor.
- Moral/Ethical Upbringing: Character and capability of proposed guardian should be considered in regards to ability to provide moral direction between the parties’ values.
In the case of Col. Ramneesh Pal Singh Bedi v. Kamaljit Kaur, the Supreme Court held that while the welfare of the children means “their moral, ethical, physical and emotional welfare,” children’s repeated preference to reside with their father was a factor, but not determinative[13].
Rights of Parents as Compared to the Welfare of the Child
While parties to a parenting proceeding have rights, these rights are always qualified by the best interests of the child. The courts have recognized that there is no longer a general presumption over who is the better parent and have moved away from favouring a mother in case where both parents apply for custody. Moreover, the courts have acknowledged that personal laws or statutory rights must yield to the welfare principle[14].
Personal Law v. Welfare Principle
The courts across India have consistently found that there must always be an outcome to the proceedings that will ensure the welfare of the child where personal law or statutory rights conflict with the welfare of the child. In Shazia Aman Khan, the Supreme Court dismissed the biological father’s Public Law entitled statutory right in favour of the child’s emotional and psychological stability and her preference to remain with her aunt, and stated that the welfare of the child must not be compromised by other interests.
PRACTICAL CHALLENGES
Despite the clarity of the welfare principle there are practical difficulties in applying it:
- Judicial Discretion – The lack of rigid rules results in courts having judicial discretion which can lead to different outcomes.
- Subjectivity – The lack of common criteria for how welfare is assessed can lead to subjectivity.
- Child Participation – Courts are increasingly considering the wishes of the child but there is no common mechanism to ensure that the child’s voice is heard in a safe and supportive manner.
- Training and Resources – Judges often have no specific training in child psychology or trauma-informed approaches to welfare and assessing welfare comprehensively[15].
RECOMMENDATIONS
- Codified definitions of clear criteria- Legislators should define detailed statutory obligations for determining the best interests of the child that builds objectivity and promotes consistency.
- Judges should experience training in child psychology and trauma-informed decisions, which would enrich a very subjective decision-making process.
- Courts administering custody cases should find ways to assure that every child has voice in adult custody processes, and if they are of a certain age and maturity to employ child-friendly processes to make that happen.
- Custody assessments should involve a multidisciplinary perspective including social workers, psychologists, child welfare experts, and their perspective to offer a fuller picture of the child.
- Systematic data should be collected and analysed regarding custody outcomes so evidence-based policy and practice can be based on real information.
CONCLUSION
The notion that the interests of the child is paramount has taken hold within Indian family law and has shaped not only judicial reasoning, but also legislative policy. Courts, whether an interim or final custody hearing, already interpret “welfare” in the broad sense and consideration of the child’s physical, emotional, psychological, and developmental needs can and indeed now has. Young people exposed to conflicted custody trends and practices would benefit from acknowledging the broad sense of welfare as mentioned above, but parents and grandparents tend to uphold predominantly parental rights and/or their family’s cultural norms as the basis for the child’s well-being[16].
There are inconsistencies in the application of the welfare principle, and not all judges have the skills or resources to address the varied dimensions of children’s needs when situated in a custody-centred legal dispute[17]. The next step is for legislation to offer clearer definitions in family and child custody matters, and for the procedural process to become more child-friendly, ensuring children are heard and respected in courtroom settings.
As a fundamental rule, all legal professionals, courts, and adjudicators have a legal representation to determine the welfare of the child as the primary consideration in any custody dispute. Above all, considering children welfare as the key consideration however, will have its roots in our moral fibre, allowing courts to better safeguard children’s rights and abilities in growing as people who are available to become capable, healthy, secure and well-adjusted members of society, it should go without saying that every child’s needs are unique[18].
REFERENCES
[1] Guardians and Wards Act, No. 8 of 1890, § 17, India Code (1993).
[2] Hindu Minority and Guardianship Act, No. 32 of 1956, § 13, India Code (1993).
[3] Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 S.C.C. 42 (India).
[4] Shazia Aman Khan v. State of Orissa, (2024) SCC OnLine SC 123 (India).
[5] Child Custody Laws In India: Its Legal Context, Cultural Perspectives And Landmark Cases, IJLLR (Apr. 9, 2025).
[6] THE BEST INTEREST OF THE CHILD IN CUSTODY DISPUTES, NLUO Journal on the Rights of the Child, Vol. VI, Issue 1, April 2025, pp. 124-130.
[7] Id.
[8] Guardians and Wards Act, No. 8 of 1890, § 17, INDIA CODE (1993).
[9] Hindu Minority and Guardianship Act, No. 32 of 1956, § 13, INDIA CODE (1993).
[10] Shazia Aman Khan v. State of Orissa, (2024) SCC OnLine SC 123.
[11] Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
[12] Child Custody – iPleaders (Oct. 4, 2024).
[13] Col. Ramneesh Pal Singh Bedi v. Kamaljit Kaur, (2024) SCC OnLine SC 456.
[14] Shazia Aman Khan v. State of Orissa, (2024) SCC OnLine SC 123.
[15] THE BEST INTEREST OF THE CHILD IN CUSTODY DISPUTES.
[16] Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 S.C.C. 42 (India).
[17] THE BEST INTEREST OF THE CHILD IN CUSTODY DISPUTES, NLUO J. on the Rts. of the Child, Vol. VI, Issue 1, Apr. 2025, at 124.
[18] Shazia Aman Khan v. State of Orissa, (2024) SCC OnLine SC 123 (India).
