NationalVOLUME 14 ISSUE # 20

The custody of minors

Soon after getting a favorable court verdict in most of divorce cases, a process for attaining the custody of minors is started which may be decided in a few months but actually, it’s a never-ending argument between the two parties.


It has been experienced that such cases prove to be the most crucial experiences of life. In fact, the guardian court is the parent court which decides the fate of minors while considering every aspect of the life of both parties and the basic criteria or the first priority for the appointment of the guardian is the welfare of minors. Every question is answered and each answer is dealt with some keen observations. The welfare of minors is the paramount issue and a supreme consideration for a court of law. The guardian court deals with the application filed under Section 12 for the appointment of a guardian; and for the restoration of custody of minors, it would base its findings on the conditions laid down in Section 17 & 25 of Guardian and Wards Act, 1890. Every sort of knots are tried to be untangled, like the source of income, condition of the residence, who is worthy of taking care of the minor, character and background of the proposed guardian, mental and physical capacity, with whom the minor would feel more confident, with whom the minors are closely associated, where they may get the unparalleled love and care, who can be the most devoted and sincere guardian, who is more religious, cultural, civilized and well-disciplined in life, who is more inclined towards the studies and progress of the

minors and so on.

Where the conflict stands between a mother and a father married to another woman, the court neglects many factors in favor of the mother, even like poverty, background, mode of living and capacity. Mother’s right is always upheld unless circumstances turn out to be more crucial and critical on her side. Minor’s mother, being employed as a teacher in the education department, in spite of her second marriage, can look after her children in a better way, as compared to the paternal parent. Mother of a minor, who had been divorced earlier, had proved that the child had not only completed the reading of the Holy Quran but was also appearing in the examination of class V. Father of the minor was living in the house of his brother, who himself had six children, whereas the mother was the sole daughter of her father who was alive and was running a shop and was also earning agricultural income and spending all his income on her and the minor. In this scenario, the mother would be the

sure winner.

Sometimes applications by petitioner/father for the custody of minor son under Section 25 of Guardian and Wards Act, 1890, are accepted by the trial court; but on appeal, they are dismissed by the appellate court. A petitioner had contracted second marriage and mother of the minor had also contracted second marriage. The minor, who was aged 12 years, was happily living with his maternal grandfather for the last many years. The appellate court interviewed the minor, who was willing to live in the house of his father/petitioner with his stepmother. The minor at the time was a student of class-V. The maternal grandfather of the minor was looking after him and was attending to his educational requirements. The petitioner/father who had contracted second marriage had children from his second wife and it was not safe to remove the minor from his present family set-up and, therefore, he was permitted to continue his life with his maternal father. The appellate court accepted the appeal and dismissed the judgment of the trial court.

In all these and other cases, all prospects are considered to reach a fruitful conclusion for the welfare of the minors.

Selection of the most appropriate guardian is the duty of the guardian court and it is the right of the children which must not be snatched away due to inconceivable circumstances. But the child has the fundamental right over the warmth of his mother’s lap and over the caring hand of his father. Snatching kids away from their loved ones could disturb the personality and leave painful memories in the minds of children. The circle of life may arrange some money and shelter, but anxiety and fear will remain to haunt the souls forever. Couples should prefer to stay united for the sake of their children as a family is the basic unit of a healthy society and separation and custody claims ruin the children’s future and the burden on family courts is also increased. Parents! your children will cry in silence for the days lost even when they themselves are parents. You are the most unparalleled phenomenon for the children in every respect and maternal and paternal parents or any other relatives are no substitute for parents’

love and affection.