The welfare of the child is the paramount consideration in deciding the custody of a minor. The court must consider the welfare and interest of the child over the legal rights of the parties in the custody battle. The court is required to give due weight to the ordinary comfort of the child, contentment, intellectual, moral and physical development, health, education, and general maintenance, and the favorable surroundings. The paramount consideration should be the welfare and well-being of the child.

JUDGMENT

Soumen Sen, J. - I have read the judgment authored by my brother Justice Roy Chowdhury and agree with his conclusions and reasonings, but having regard to the importance generally attached to the custody of a minor, I wish to add a short judgment of my own.

2. The custody of sweet little adorable Oshmi is the subject matter of the appeal.

3. We have interacted with her and our experience has been captured in the judgment of my brother Justice Roy Chowdhury and I refrain from revisiting the facts.

4. The custody of a minor is a very delicate issue.

5. The statues governing the custody of a minor principally are The Guardians and Wards Act, 1890 and The Hindu Minority and Guardianship Act, 1956. These two statues are relevant for two present purposes.

6. The Guardians and Wards Act, 1890, was the first statute that primarily enacted to consolidate the various Acts then in force keeping in view the personal law of diverse communities in India. Section 7 gives power to the Court that if it is satisfied that it is for the welfare of a minor that an order should be made, it may make an order appointing a guardian of his person or property, or both, or declaring a person to be such a guardian. Section 8 lays down that no order under Section 7 will be made except on the application of the person desirous of being, or claiming to be, the guardian of the minor or any relative or friend of the minor or the Collector of the district in which the minor ordinarily resides or in which he has property or the Collector having authority with respect to the class to which the minor belongs. Section 17 enjoins upon the court to have due regard to the personal law of the minor and specially take note of the circumstances which point towards the welfare of the minor in either appointing a guardian or declaring a guardian. If the minor is old enough to form an intelligent preference, the court may be justified to consider that preference also in coming to the final conclusion.

7. The Hindu Minority and Guardianship Act, 1956 was enacted as a law complementary to the Guardians and Wards Act, 1890. This defines a 'minor' to be a person who has not completed the age of eighteen years.

8. 'Natural guardian', according to this Act, means any of the guardians mentioned in Section 6. Section 6 says that the natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in the joint family property) are - (a) in the case of a boy or an unmarried girl, the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Section 13 of the Act lays down that in the appointment or declaration of any person as guardian of Hindu minor by a Court, the welfare of the minor shall be the paramount consideration.

9. A bare reading of the provisions of the two Acts referred to above with the statement of object and reasons make it clear that the welfare of the minor is the predominant considerations and the legal rights of the persons claiming to be the guardians or claiming to be entitled to the custody would play a very insignificant role in the determination by the court.

10. In a fairly recent decision of the Hon'ble Supreme Court in Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu & Ors. reported at MANU/SC/0890/2022 the Apex Court in deciding a petition seeking right of habeas corpus in a matter relating to custody of a child discussed the principles relating to custody of a child in great details by referring to a large catena of Indian and Foreign decisions. In the said decisions the Apex court observed that while considering the competing claims of guardianship, the test would be to see what would best serve the welfare and interest of the child. It was observed that in all circumstances welfare of the minor child would prevail over the legal rights of the parties in the custody