Gaurav Nagpal Vs Sumedha Nagpal (SC) (Criminal Appeal NO. 5099 of 2007)
6. With reference to Section 6 of the Act it was submitted that the father was the legal guardian and the welfare of the minor child lies with the appellant. He has a large income and resides in a joint family where the minor is taken care of by the appellant, his mother, brother and brother’s wife and his three nephews. The warmth of the joint family has led to an all round development of the child and by taking him away from those surroundings can deprive him of love and affection. The appellant lives in a posh locality and the house is built on nearly 3000 sq. yards whereas the respondent resides with her parents in a two-bed room flat. Apart from that the appellant has a good educational background and since the child has been residing for the last more than seven years with him, the courts should not have directed handing over custody to the respondent.
7. It was further pointed out that the primary focus being the welfare of the child, the respondent should have brought on record as to how with her meagre income she would be able to provide good education to the child. It was pointed out that the child is afraid of his mother and wrenching him from the custody of the father would lead to irreparable mental trauma.
21. Sometimes, a writ of habeas corpus is sought for custody of a minor child. In such cases also, the paramount consideration which is required to be kept in view by a writ-Court is ‘welfare of the child’.
22. In Habeas Corpus, Vol. I, page 581, Bailey states;
"The reputation of the father may be as stainless as crystal; he may not be afflicted with the slightest mental, moral or physical disqualifications from superintending the general welfare of the infant; the mother may have been separated from him without the shadow of a pretence of justification; and yet the interests of the child may imperatively demand the denial of the father's right and its continuance with the mother. The tender age and precarious state of its health make the vigilance of the mother indispensable to its proper care; for, not doubting that paternal anxiety would seek for and obtain the best substitute which could be procured yet every instinct of humanity unerringly proclaims that no substitute can supply the place of her whose watchfulness over the sleeping cradle, or waking moments of her offspring, is prompted by deeper and holier feeling than the most liberal allowance of nurses' wages could possibly stimulate."
35. The principles in relation to the custody of a minor child are well settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the ‘welfare of the child’ and not rights of the parents under a statute for the time being in force.
43. The word ‘welfare’ used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.