Guardianship and parental rights — welfare of the child principle

In a custody fight over a nine-year-old in Mumbai, each parent's lawyer says the same thing: my client has the better right to the child. The judge says something different. She asks what is best for the child. That shift, from the parents' rights to the child's welfare, is the most important idea in this part of family law, and it appears in almost every statute that touches children, whatever the religion of the family.

In two minutes

Across Indian family law the court's guiding test for guardianship and custody is the welfare of the child: statutory priorities between father and mother are starting points, and the Hindu Minority and Guardianship Act says in terms that welfare is paramount and that nobody is entitled to guardianship if it will not serve the minor's welfare.

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