Welfare of the child is supreme. This principle of assigning paramount consideration to the interests of the child has developed simultaneously with the concept of transforming parental power into parental responsibility. So in any adjudication pertaining to the issue of a child, the Courts lay utmost emphasis on their welfare. The basic policy of law revolves around the protection of minors and the same is ensured by widening the parameters of parental liability, by stressing upon the state’s duty towards children and by altering the Court’s task from mere supervision to virtual parental care. The past ages saw the concept of parental responsibility being viewed merely as a moral commitment under the English Common Law. Moreover this moral obligation ceased to subsist in respect to illegitimate offsprings. The duty to maintain children began to be imposed by a series of legislative modifications starting with the Poor Laws Act, The Guardianship and Maintenance Act, The National Assistance Act etc. The Hindu Law was perhaps the only set of regulations existing amongst the primordial legal systems of the world, which laid that the duty to maintain children, whether legitimate or illegitimate, primarily rested upon the parents. The modern Hindu Law casts this duty on both the mother and father of the child. Criminal law also recognizes this parental obligation through Section 125 of the Criminal Procedure Code.
The old common law laid that the father is the natural guardian of his children and by virtue of this he possesses absolute custody and control over his children. The Talford’s Act of 1839 made a minor shift from this rule by providing to the mother, the right of custody of children under the age of seven. The principle of welfare of children was initially developed by the Chancery Courts and was enforceable only under the jurisdiction of the Chancery Courts. It was the Guardianship of Infants Act, 1925 that gave explicit legal acknowledgment to this welfare theory. Now the modern English law recognizes and applies this concept in a full-fledged manner, in all areas pertaining to children – be it civil, criminal or administrative. In some cases pertaining to the issues of children, some conflicting decisions were rendered by the judges. The judges said that where a matter involves a parent on one side and a third party on the opposite side, there the welfare rule cannot be applied and the concept of parental rights would be accorded absolute cognizance. But if the matter is in between the parents only, then the welfare principle would have undisputed and absolute application. But the Court of Appeals has by its judgments, reduced the repercussions of such decisions and as a result the modern English law now accords complete precedence to the welfare principle over the rule of parental rights.
The development of the principle that welfare of the child is of paramount consideration in the Indian legal system was slow but steady. The basic concept pertaining to this can be summed up by what was said by Justice Dua in the case of Rattan Amol Singh Versus Kamaljeet Kaur. He opined that the father’s right to custody of a minor is neither absolute nor is it indefeasible in law; rather it is circumscribed by the considerations of the benefit and welfare of the minor. The statutory provision relating to welfare of children has been laid down under Section 13 of the Hindu Minority and Guardianship Act, 1956. This provision provides that in the appointment or declaration of any person as guardian of a Hindu minor by a Court, the welfare of the minor shall be the paramount consideration. Section 25 of the Guardians and Wards Act also enacts the welfare rule by laying down that if a ward leaves or is removed from the custody of a guardian of his person, the court if it is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian, may make an order for his return, and for the purpose of enforcing the order may cause the ward to be arrested and to be delivered into the custody of the guardian. Whenever an issue of custody or maintenance of children has arisen in any matter before the Indian legal system, the judiciary was not posed with any serious impediments, as the welfare principle is well enunciated in the Indian statutes books.
Another perspective which needs due consideration here is the changing role of state in the matters involving children. The major legal systems around the globe now accord due recognition to the responsibility of the state towards children. Where there is failure in discharge of parental obligations and duties vis-à-vis the children, then the state steps into the picture by assuming the position of the parents. To maximize the levels of security to children, a consistent effort is made to streamline the combined efforts of the state and the parents. A very relevant example of this streamlining exists in the field of education of children. The law requires the parents to make provision for compulsory primary education of their wards and simultaneously the state also strives at providing facilities for free primary education as mandated by the constitution.
The Children Act of 1948 enacted under the English legal system provides that a child, who is permanently or temporarily destitute of parental care, may be taken under custody by a local authority. The law also permits a local body to take authority over a child even where the natural parents of the child exist. The objective behind such a provision is to secure the best interest and proper upbringing of the child. Under the Indian laws, there is a Children Act enacted by the Central Government in 1960. Apart from this the various states also have their individual legislations pertaining to children. These enactments essentially aim at providing care, maintenance, education and vocational training to children who are neglected or delinquent keeping in view their vulnerability and level of dependence. The Welfare Boards created under these statutes take under protection children who are neglected. For dealing with the issues pertaining to delinquent children, special children’s courts are established.
Having dealt with the welfare principle and the enlarged role of the state in issues dealing with children, we can conveniently say that the family law of the modern era stresses upon the crucial fact that concept of family is not just limited to the father alone playing the twin roles of a guardian as well as a mentor. Rather a family essentially is constituted of the children along with the mother and the father, all residing together in an environment of interdependence and freedom. Since the children are the most vulnerable and gentle constituents of the family set up, so it is cogent that it is their welfare, which requires maximum deliberation. It is on the basis of this fact that all laws governing the interests of the child aim at achieving one and only one end i.e. maximization of the welfare of children.
