Israr Ahmad vs Azazul Hussain Ahmad & Anr. on 20 December, 2019
In the case of Rosy Jacob v. Jacob A. Chaoramakkal it was held that the controlling consideration governing the custody of the children is the welfare of the children concerned and not the right of their parents. The dominant consideration in making orders under Section 25 of the Act is the welfare of the minor children. It has to be seen that who would be in a better position to be able to impart natural and selfless affection. Further in case of a conflict or dispute between the mother and the father about the custody of the minor the Court has to adopt a somewhat different but more pragmatic approach. No doubt the father may have a legal right to claim the custody of the child but at the same time fitness of father has to be considered, determined and weighed predominantly in terms of the welfare of the minor. If it is found that the father cannot promote the welfare equally or better than the mother, he cannot claim indefeasible right to such custody. Merely father's fitness to maintain the minor cannot override considerations of the welfare of the minor. Statute has presumed that the father is generally in a better position to look-after the minor being the head of the family earning bread for it. In any case it has to be seen primarily the welfare of the minor while determining the question of his custody. But merely, because the father agrees to maintain the minor showing all affection would not necessarily lead to the conclusion that the welfare of the minor would be batter promoted by granting custody to him. The mother may be equally affectionate towards the minor. If she is possessed of requisite financial resources, she would be always in advantageous position of guaranteeing better health education and maintenance for the minor. A minor is not a mere chattel nor a play thing. A child has to grow up in a normal balanced manner.