Point of Law: Custody of children - Custody of child, primary and paramount consideration is welfare of child - Age, sex of child and she being in custody of mother who is not incapacitated in any manner and gainfully employed, being well qualified, it would not be appropriate to give custody of child to father.

JUDGMENT :

DINESH KUMAR SINGH, J.

(i) Significance of Marriage as Social Institution:

1. Marriage is an institution that admits man and woman to family life. It is a stable relationship in which a man and a woman are socially permitted to live together without losing their status in the community. Marriage is not merely concerned with the couple; rather it affects the whole society and future generations. The responsibilities it entrusts a couple with are thus both heavy and delicate. In Hindu view, marriage is not a concession to human weakness, but a means for spiritual growth. Man and woman are soul mates who, through the institution of marriage, can direct the energy associated with their individual instincts and passion into the progress of their souls. The institution of marriage is the central draft of all the forms of human society which are a part of civilization. Marriage is the deepest as well as the most complex of all human relations because it is a difficult task for two people to lead their life together when they have their independent thinking and way of living. In Indian life, role expectations are highly specific and institutional in marriage, thus a woman's role in family has remained multifarious. Marriage and family, as a set of institutions, also encompass formal and informal, objective and subjective aspects. Family is a fundamental building block of all human civilization. Marriage is the glue that holds it together. The health of culture, its citizens and their children is ultimately linked to the success of marriage.

2. Strong stable marriages are the best way to ensure that children become responsible members of society. Marriage improves the health and longevity of men and women; gives them access to more active and satisfactory married life, increases wealth and assets, boosts children’s chances of success and enhances men’s performance at work and their earning. When one gets rid of the institution altogether there are many harmful consequences. It is not just the marrying of two people together, but its success or failure equally affects society. When a family falls apart, it leaves a negative impact on the community because the children of such a family are more likely to be delinquents. On the contrary when a family is strong, the community is positively affected. Every child that goes out into the world from a stable happy home is a blessing to the community, and is able to make a contribution, rather than being a drain on the community.

3. Creation of male and female is not an accidental fact or afterthought but the very apex of God’s creative activity. Even more it is the sexual pairing of male and female activity that is the pinnacle of the creative process. To deny the distinction of two sexes is to deny what is integral to God’s ultimate creative act.

4. The inherent characteristics of marriage are intimacy, companionship, procreation and parenting. Marriage is not simply a celebration or expression of love. It is the world’s most basic and universal institution – the foundation on which families are created and society reproduces itself. Society suffers when procreation and parenting is separated from the definition of marriage. Marriage is the most diverse relationship known to humanity because it unites the two halves of humanity - male and female. It is not a civil right; it is an institution given specific cultural and legal recognition because of the unique benefits it confers on adults, children and society at large.

5. Islam considers marriage as both a physical and spiritual bond that endures into the afterlife, also recommends marriage high among other things, it helps in the pursuit of spiritual perfection. The Bahai Faith sees marriage as, a foundation of the structure of society.

6. Buddhism does not encourage or discourage marriage, although it does teach how one might live a happily married life.

7. Hinduism sees marriage as a sacred duty that entails both religious and social obli