Not ‘Comfort’, But Overall Welfare Of The Minor Is The Sole And Predominant Criterion To Determine Custody: Tripura HC [Read Judgment]

“It is not the “comfort‟ alone is to be considered, but the overall welfare of the minor is the sole and predominant criterion to be determined for her better and descent growing both physically and mentally to lead quality and respectable life the society expects from a child.”

The Tripura High court has observed that it is not the “comfort‟ alone to be considered, but the overall welfare of the minor is the sole and predominant criterion, while considering grant of custody.

The grandfather had approached the Family court for appointing him as the ‘Guardian’ of the child. Though the child told the court that she feels “comfortable‟ in staying with the grandparents, the court did not hand over the custody to them. They approached the High court challenging this order.

The bench comprising of the Chief Justice Ajay Rastogi and Justice Arindam Lodh observed that before appointing a third party in preference to natural guardians, the court should give a clear finding that the natural guardians are not suitable persons and are unfit to look after the welfare of the minor and that the custody of a minor has to be decided on the sole and predominant criteria to what would serve the interest and welfare of the minor.

“In the context of Section 13 of the Hindu Minority and Guardianship Act, 1956, it is well-settled law that the word “welfare” is to be understood in its widest sense and embraces not merely the moral and physical well-being of the minor and happiness but every circumstance and every factor bearing upon the moral and religious welfare and the education and upbringing of the minor.”, the bench said.

The court took note that the grandfather is a retired security guard having pension of only Rs.12, 000/- month and is aged above 65 years and that the environment of his house is not conducive for the proper upbringing of the child.

“It is not the “comfort‟ alone is to be considered, but the overall welfare of the minor is the sole and predominant criterion to be determined for her better and descent growing both physically and mentally to lead quality and respectable life the society expects from a child. Further, we are not unmindful to the ground reality that imparting better education has become highly expensive nowadays. To pursue education through open school is one of the indicatives to the inability of the maternal grandparents to continue her study as a regular student in a reputed school from where her study has been abandoned.”, the court observed holding that the biological parents they have a right to seek custody of their minor child.

Dismissing the appeal, the bench said that the child is not mature enough to form an intelligent opinion and she is not in a position to arrive at a firm decision and she is suffering an identity crisis. She needs a proper guidance and enough care which, according to this Court, is not possible for the appellant, it added.