The paramount consideration in child custody cases is the welfare of the child, which must guide judicial decisions over parental rights.

Order :

1. This appeal has been filed by the appellant (hereinafter to be referred as grandmother) challenging the order dated 12.01.2024 passed by the learned Family Court whereby the application filed on behalf of the grandmother under Section 7 and 10 of the Guardians and Wards Act, 1890 (hereinafter to be refereed as the Act of 1890) was dismissed.

2. Brief facts of the case are that the grandmother filed an application under Section 7 and 10 of the Act of 1890 before the court below seeking custody of the girl child i.e. her grand daughter which was dismissed by the court below on the ground that the mother of the child is in government service, working as teacher and looking to the best interest of the child, the application filed on behalf of the grandmother was dismissed. Hence, the present appeal has been filed by the grandmother challenging the order dated 12.01.2024.

3. Counsel for the grandmother submits that the learned court below has committed serious illegality in dismissing the application filed by the grandmother. Counsel further submits that the grandmother is having agriculture land in which the share of mother of the girl child is also there. Counsel further submits that the family business of the grandmother is also there and they can better take care of the girl child.

4. Counsel for the respondent, mother of the child, supports the judgment passed by the court below. Counsel further submits that the mother of the girl child is working as government teacher. Counsel further submits that the girl child now aged about 10 years and studying in private school and best interest of the child is with the mother and prayed for dismissed of the appeal. 5. Heard counsel for the parties and perused the record.

6. The Hon’ble Supreme Court of India, in the matter of ‘Col. Ramneesh Pal Singh versus Sugandhi Aggarwal’, reported in 2024 (6) SCR 259, in paragraphs no.10 and 11 held as under:-

“10. In this context, it would be appropriate to refer to a decision of this Court in Nil Ratan Kundu (Supra) wherein parameters of ‘welfare’ and principles to be considered by courts whilst deciding questions involving the custody of minor children came to be enunciated. The relevant paragraph(s) are reproduced as under:

“52. In our judgment, the law relating to custody of a child is fairly well settled and it is this: in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor. Xxx

55. We are unable to appreciate the approach of the courts below. This Court in a catena of decisions has held that the controlling consideration governing the custody of children is the welfare of children and not the right of their parents.

56. In Rosy Jacob [(1973) 1 SCC 840] this Court stated: (SCC p. 854, para 15)

“15. … The contention that if the husband [father] is not unfit to be the guardian of his minor children, then, th