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Second justification behind the 'welfare' principle is the public interest
that stand served with the optimal growth of the children. It is well
recognised that children are the supreme asset of the nation. Rightful
place of the child in the sizeable fabric has been recognised in many
international covenants, which are adopted in this country as well. Child-
centric human rights jurisprudence that has been evolved over a period of
time is founded on the principle that public good demands proper growth of
the child, who are the future of the nation. It has been emphasised by
this Court also, time and again, following observations in Bandhua Mukti
Morcha v. Union of India & Ors.[2]:
Rosy Jacob vs Jacob A. Chakramakkal on 5 April, 1973
If the
children are better equipped with a broader human output, the society will
feel happy with them. Neglecting the children means loss to the society as
a whole. If children are deprived of their childhood — socially,
economically, physically and mentally — the nation gets deprived of the
potential human resources for social progress, economic empowerment and
peace and order, the social stability and good citizenry. The Founding
Fathers of the Constitution, therefore, have emphasised the importance of
the role of the child and the need of its best development.”
Same sentiments were earlier expressed in Rosy Jacob v. Jacob A.
Chakramakkal[3] in the following words:
The Hindu Minority And Guardianship Act, 1956
Section 7 in The Guardians And Wards Act, 1890 [Entire Act]
Section 10 in The Guardians And Wards Act, 1890 [Entire Act]
Section 12 in The Guardians And Wards Act, 1890 [Entire Act]
Gaurav Nagpal vs Sumedha Nagpal on 19 November, 2008
(2) No person shall be entitled to the guardianship by virtue of the
provisions of this Act or of any law relating to guardianship in marriage
among Hindus, if the court is of opinion that his or her guardianship will
not be for the welfare of the minor.”
This Court in the case of Gaurav Nagpal v. Sumedha Nagpal[1] stated in
detail, the law relating to custody in England and America and pointed out
that even in those jurisdictions, welfare of the minor child is the first
and paramount consideration and in order to determine child custody, the
jurisdiction exercised by the Court rests on its own inherent equality
powers where the Court acts as 'Parens Patriae'. The Court further
observed that various statutes give legislative recognition to the
aforesaid established principles. The Court explained the expression
'welfare', occurring in Section 13 of the said Act in the following manner:
Section 17 in The Guardians And Wards Act, 1890 [Entire Act]
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