13. Welfare of minor to be paramount consideration.-
(1) In the appointment of declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.
(2) No person shall be entitled to the guardianship by virtue of the provisions of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.
Custody of father
(i) The welfare of the child is determined neither by the economic affluence nor a deep mental or emotional concern for the well being of the child. The answer depends on the balancing of all these factors and determining what is best for the child’s total well being. Held that the father being a Sergeant in the Indian Army who had a record of disciplined life with a regular income, was willing to get posted to Kozhikode for the education of the minor and the parents of the father were affluent enough to look after the minor unlike the parents of the mother (who was dead) were old, had no proper source of income and also had a mentally retarded son to look after, was in a better position to look after the welfare of the minor; Munnodiyil Peravakutty v. Kuniyedath Chalil Velayudhan, AIR 1992 Ker 290.
(ii) Recognition of father’s absolute right to the custody of the child would render the child an inanimate property or chattel, which could be possessed and used as the owner pleases. Held that though the father was not found unfit as a guardian of his minor children keeping them in the custody of maternal grandmother subject to certain conditions; Baby Sarojam v. S. Vijaykrishnan Nair, AIR 1992 Ker 277.
Mother attending night clubs
Money alone is not sufficient to record finding regarding the welfare of the child. In case mother of minor is in the habit of attending night clubs and coming late at home during which period the minor has to be left in some care house, there is likelihood of his coming into contact with undesirable elements due to the negligence of mother. Therefore in the interest of child it will be proper that he is not left with his mother; Amit Beri v. Sheetal Beri, wife of Amit Beri, AIR 2003 All 18.
Minor left with relatives
The minor child had been left in the custody of his mother’s sister and maternal grandparents due to the mother’s illness. It was held that as the father is the natural guardian and was employed as a Lecturer a noble profession, the welfare of the minor is with his father and mother and not other relatives; Ankur Tripathi v. Radhey Shyam Pandey, AIR 1994 All 250.
Welfare: Paramount consideration
Though the natural guardians are enumerated in section 6 the right is not absolute and the court has to give paramount considertion to the welfare of the minor; Mohini v. Virendra, AIR 1977 SC 1359: 1977(3) SCC 513.