Jharkhand High Court cites chances of ‘problems’ with stepmom, denies man custody of 7-year-old daughter

The division bench heard the matter on April 7.

The order added that the welfare of a child is determined neither by economic affluence nor by 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.

It continued that the term “welfare” has the broadest amplitude. It is to be understood in its broadest sense to cover material and physical well-being, education, health, happiness and moral welfare of the child.

Case of custody of a minor

The petitioner-father married in April 2017. Following the birth of their daughter on March 12, 2019, the mother tragically passed away due to medical complications on March 25, 2019. Since her birth, the minor has resided with her maternal grandfather and her maternal aunt (Masi).

The father initially moved the additional family court in Dhanbad under Section 25 of the Guardians and Wards Act, 1890, seeking guardianship. After his suit was dismissed on October 15, 2024, her approached the high court, alleging that the trial court’s decision was “perverse” and failed to recognise his status as the natural guardian.

Appearing for the father, advocates Mahesh Tewari and Santosh Kumar submitted that the petitioner is a qualified and capable person to maintain his minor child, and he wants to impart her good education.

It was further stated that the grandfather has no care or love with the minor child, and he is an old person suffering from various diseases, for which he cannot take proper care and impart good education to his minor daughter.

Appearing for the grandparents, advocate Ranjan Kumar submitted that the petitioner has solemnised a second marriage and from their wedlock, there is also a child.

‘Guardianship not merely physical custody’

While referring to Section 17 of the Guardians and Wards Act, 1890, the court added that it mandates that courts prioritise the welfare of the minor when appointing a guardian, considering factors like age, sex, religion, the proposed guardian’s character, and their relationship to the minor, while also giving weight to an older minor’s intelligent preference.

The order stated that it guides courts to act consistently with personal laws but always keep the child’s best interest paramount, even over parental rights.

“It is evident from Section 17 of the Act, 1890 that while appointing any person as guardian the paramount consideration is the welfare of the minor and 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, if the court is of opinion that his or her guardianship will not be for the welfare of the minor,” The court observed.

The order emphasised that Section 17 of the Act of 1890 is very specific that there cannot be any compromise on the issue of the welfare of the minor, even though the father is the natural guardian.

It continued that the purpose and object of the Guardians and Wards Act, 1890, is not mere physical custody of a minor but due protection of the ward’s health, maintenance and education. It added that the power and duty of the court under this Act is the welfare of the minor.

Citing the Sheoli Hati v Somnath Das, the court observed that the word “welfare” must be taken in its widest sense, and it is well settled that the paramount consideration in the matter of handing over the custody of the child is the welfare of the child.

Biological father v guardianship

Referring to the fact of the matter, the court noted that the minor daughter of the appellant is residing in Pune along with her Mousi where she is studying in an International School, and the grandfather has paid the annual fee of Rs 94,000.

The order highlighted that the grandfather is also bearing all other expenditures for education, and she is being properly cared for by her maternal aunt (Mousi), whom she has known as her mother since her childhood, in the guardianship of the maternal grandfather and other family members.

Acknowledging that the father has already married to another lady and had a child from this wedlock, there is probability that minor may face problem to adjust with her step mother in new environment, the court said, child custody cases is not bound by the mere legal right of the parent or guardian, though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child.