Whether welfare of the minor girl lies in allowing her

custody to remain with the Respondents instead of

transferring it to the Appellant mother?
The respondent has claimed that he is father of the girl child, namely, Bhavya. It is further
submitted that in terms of Section 6(a) of the Act of 1956, he is the guardian of 'Bhavya',
therefore, his custody over his own daughter cannot be termed inappropriate and unlawful.
It is crystal clear that the father is one of the natural guardians and having the custody of the
minor child whether a boy or an unmarried girl cannot be termed illegal ipso facto. In the
facts of the present case where the admitted case of the appellant is that she has allowed the
respondent no. 2(grandmother) to take the female child with her for whatever reasons in the
absence of evidence on the record showing otherwise the custody of the minor with
respondent number 2 is not illegal. The proviso or section 6 of the act of 1956 puts out an
exception but it does not render the custody of a minor child aged below 5 years with his or
her father illegal.
The word welfare used in section 13 of the act has to be construed literally and must be taken
in its widest sense. The moral and ethical welfare of the child must also way with the court as
well as its physical well being. The provisions of the special statutes which govern the rights
of the parents and guardians must be taken into consideration that is nothing which can stand
in the way of the court exercising its parens patriae jurisdiction arising in such cases. In the
facts of the present case the respondent who is much better placed then the petitioner to take
care of her all round developments including her health issues, education and he alone can
provide a conductive environment to the minor girl. The love of Bhavya’s father and affection
towards her cannot be doubted. He is providing all amenities and facilities to Bhavya which
are commensurate to his status. Contrary to this the appellant has no independent source of
income and presently she is meeting her expenses from the money provided by respondent
only. She is also fighting litigation for divorce and does a she is required to devote her time to
the litigations which would keep her away from Bhavya. This is likely to affect the education
of the girl child who has already attend the school going age and has been admitted in a
school in Ratlam. Monika is unable to manage the entire things. The grandmother of Bhavya
is with her and that take care of her emotional aspect to a great extent, and this is why she has
been staying happily with her for 1 year.
 In the case of Mausami Moitra Ganguli V. Jayant Ganguli
The mother and father got married on April 18 1996 and had a son name Satyajit on may
28,1998. The other file the divorce against the father and was granted the expirted degree on
September 2002. The father alerts that the mother had no emotional born with the child had
not contact the child since leaving Allahabad, and after that he was capable of and looking
after the welfare of the child. The child stated that he preferred to stay at Allahabad with his
father and that the mother should come and stay with him. The issue in this case was whether
the father or the mother should have the custody of an almost 10 year old child. The high
court granted permanent custody of the child to the father with directions to the mother to
ensure the child's welfare and education. The ruling was afford by the court and the appeal
was dismissed.
The question of welfare of the minor child has again to be considered in the background of
the relevant facts and circumstances each case has to be decided on its own facts and other
decided cases can hardly serve as binding the question of welfare of the minor child has again
to be considered in the background of the relevant facts and circumstances. It is no doubt true
that father is presumed by the statutes to be better suited to look after the welfare of the child.
In the present case in hand the mother of the child has not been looking after her which was
the reason for many classes between the couple. The grandmother of Bhavya Lalita Devi had
to come to America to look after her. Amit was an engineer he was working day and night for
the welfare of Bhavya and his wife was unable to take care of Bhavya.
In the case of Rosy Jacob versus Jacob A. Chakramakkal a three just Benz of the court in a
rather cord language has observed that the children are not nearly shuttles nor are they mere
platings for their parents. Absolute right of parents over the destiny and the lives of their
children has in the modern changed social conditions, yield to the considerations of their
welfare as human beings so that they may grow up in a normal balanced manners to be useful
members of the society and the guardian court in case of a dispute between the mother and
father is expected to strike just and proper balance between the requirements of the welfare of
the minor children and their right respective parents over them.”

 In Halsbury's law of England, the law pertaining to the custody and maintenance of
the children has been succinctly stated in the following terms:
Principles as to the custody and upbringing of the minors- where and any proceedings before
any court the custody or a bringing of a minor is an question the court and deciding that
question must regard the welfare of the minor as the first and paramount consideration and
must not take consideration weather from any other point of view the claim of the father in
respect of such custody or a bringing a superior to that of mother or the claim of the mother is
superior to that of the father. The law allows the mother and father to have equal rights and
authority over child and are exercisable by either without the other.
 In the case of Nil Ratan Kundu and Another v. Abhijit Kundu since reported in (2008)
9 SCC 413,
the Hon'ble Supreme Court held that a Court while dealing with custody Patna High
Court CR. WJC No.783 of 2021 dt.12-04-2022 cases, is neither bound by statutes nor by
the strict rules of evidence or procedure nor by precedent. The Court has to give due
weight to a child's ordinary comfort, contentment, health, education, intellectual
development and favourable surroundings.
 In the case of Gaytri Bajaj v. Jiten Bhalla since reported in (2012) 12 SCC 471,
the Hon'ble Supreme Court held that an order of custody of minor children either under the
provisions of The Guardians and Wards Act, 1890 or Hindu Minority and Guardianship Act,
1956 is required to be made by the Court treating the interest and welfare of the minor to be
of paramount importance. It is not the better right of the either parent that would require
adjudication while deciding their entitlement to custody. The desire of the child coupled with
the availability of a conducive and appropriate environment for proper upbringing together
with the ability and means of the concerned parent to take care of the child are some of the
relevant factors that have to be taken into account by the Court while deciding the issue of
custody of a minor.
Similarly, in the case of Sheoli Hati v. Somnath Das since reported in (2019) 7 SCC 490, the
Hon'ble Supreme Court held that while taking a decision regarding custody or other issues
Patna High Court CR. WJC No.783 of 2021 dt.12-04-2022 pertaining to a child welfare of
the child is of paramount consideration.
Thus, it can be culled out from the aforesaid decisions of the Hon'ble Supreme Court that it is
not the statutory provisions which would bind the Court under all circumstances to handover
the custody of a minor child who has not completed the age of five years to the mother.