On the pleadings of the parties by order dated 10.02.

18 following issues were framed:

1) Whether the contract entered with the ART Clinic is a valid one under The Indian
Contacts Act?
2) What constitute the best interest of the child?
3) Who can claim the legal custodianship in the particular case?

I have heard the ld. Counsel for parties and perused the record. My issue wise findings are as
under:

Issue No. 2.

Children are the national asset and also the vulnerable section of the society so it is the duty of
the State to make such comprehensive laws which serve the best interest of the child. Therefore
The principles of law in relation to the custody of a minor child are well settled in either the
Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956
(Section 13). Similarly It is also well established in various Court of record cases like Shyamrao
Maroti Korwate Vs. Deepak Kisanrao Tekam reported in (2010) 10 SCC 314, R.V. Srinath
Prasad Vs. Nandamuri Jayakrishna and Ors. reported in (2001) 4 SCC 71, Ashish Ranjan Vs.
Anupma Tandon and Anr. Reported in (2010) 14 SCC 274 that “while determining the question
as to which parent the care and control of a child should be committed, the first and the
paramount consideration is the welfare and interest of the child and not the rights of the parents
under a statute as the child is not just a mere commodity thus should be handled with proper care
and caution.”In fact no statute, no court can compromise on the issue relating to the welfare of
the child which is to be determined on the basis of facts and circumstances of each and every
case. In the case of Gaurav Nagpal vs. Sumedha Nagpal, (2009) 1 SCC 42, The Supreme Court
held:

“The word "welfare" used in Section 13 of the Act has to be construed literally and must be
taken in its widest sense.” There are also worldwide legislation pertaining to the welfare of the
child which has been instinctively referred in Supreme Court case like Anjali Kapoor vs Rajiv
Baijal, CIVIL APPEAL NO.2628 OF 2009. The legislation referred are as follows:
In McGrath (infants), Re (1893) 1 Ch 143: 62 LJ Ch 208 (CA), it was observed that, "The
dominant matter for the consideration of the court is the welfare of the child. But the welfare of a
child is not to be measured by money only, or by physical comfort only. The word welfare must
be taken in its widest sense. The moral or religious welfare of the child must be considered as
well as its physical well-being. Nor can the ties of affection be disregarded."
In Walker v. Walker & Harrison, 1981 New Ze Recent Law 257, The New Zealand Court (cited
by British Law Commission, Working Paper No. 96) stated that "welfare is an all-encompassing
word. It includes material welfare; both in the sense of adequacy of resources to provide a
pleasant home and a comfortable standard of living and in the sense of an adequacy of care to
ensure that good health and due personal pride are maintained. However, while material
considerations have their place they are secondary matters. More important are the stability and
the security, the loving and understanding care and guidance, the warm and compassionate
relationships that are essential for the full development of the child's own character, personality
and talents."
Law in the United States is also not different. In American Jurisprudence, Second Edition, Vol.
39; para 31; page 34, it is stated;
"As a rule, in the selection of a guardian of a minor, the best interest of the child is the
paramount consideration, to which even the rights of parents must sometimes yield". (emphasis
supplied) In para 148; pp.280-81; it is stated
In considering what will be for the welfare of the minor, the Court shall have regard to the age,
sex and religion of the minor, the character and capacity of the proposed guardian and his
nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or
previous relations of the proposed guardian with the minor or his property.

ISSUE 3:
Marital chords which are bound on the foundation of trust are highly ailing nowadays resulting
in diminishing the sanctity of the marriages and also affecting the society at large. As Aristotle
said man is a social animal, therefore it is very difficult for him to live alone and thus home is
created, with all its four walls cemented with extreme love and affection. The foundation of
home is to provide better future to the child but at the same time the continuous fight between the
couples leads to havoc on the child. They become shy and also disturb them psychologically at a
very young age and tragically with no fault they become the biggest victim of their parents
marital discord. So it is very necessary to keep them away from such environment and therefore
when the couples decide to live apart from each other it is vital factor to decide the custody of
the child especially when the child is minor. Custody of child is determined by taking into
consideration the best interest of the child as has already been discussed not the right of parents
over the child.
It is no doubt that the appellant also relied upon Section 6 of the Hindu Minority and
Guardianship Act where under the mother is entitled to retain custody of the minor child under
the age of five years but the said law is also framed in the lights of the best interest of the child
because it is assumed that mother is best care taker at the initial stages of child but when it is
proved that she failed to take that responsibility then the custody is handed over to father even
when the minor girl is below five years. Reliance is placed on the Sumedha Nagpal vs State Of
Delhi And Ors, JT 2000 (7) SC 450 and Mausami Moitra Ganguli vs Jayanti Ganguli, S.L.P. (C)
No. 11324 of 2007)
In the case of Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840, the Supreme Court has
observed that, the principle on which the Court should decide the fitness of the guardian mainly
depends on two factors:
(i) the father's fitness or otherwise to be the guardian, and (ii) the interests of the minors. This
Court considering the welfare of the child also stated that, the children are not mere chattels: nor
are they mere playthings for their parents. Absolute right of parents over the destinies and the
lives of their children have, in the modern changed social conditions, yielded to the
considerations of their welfare as human beings so that they may grow up in a normal balanced
manner to be useful members of the society."

In the case at hand Mrs Smitha developed an extra marital affair with her colleague in the course
of her marriage subsisting with Mr. Anoop which thereafter resulted in divorce between them.
The custody of one and half year old daughter is retained by Mr. Anoop. After almost one year
when Mr. Sunil remarried one Mrs. Anitha she became concerned about the custody of her
daughter. This shows the irresponsive character of Mrs Smitha towards relationship

lap of a mother is the natural cradle where the safety and welfare of the child can be assured and
there is no substitute for the same, but still we feel that at this stage of the proceedings it would
not be appropriate for us to interfere in the matter and leave all matters arising in the case to be
decided by an appropriate forum irrespective of whatever, we have stated in the course of this
order.

Before parting with the case, we cannot but express our deep anxiety over the matter. No
decision by any court can restore the broken home or give a child the care and protection of both
dutiful parents. No court welcomes such problems or feels at ease in deciding them. But a
decision there must be, and it cannot be one repugnant to normal concepts of family and
marriage. The basic unit of society is the family and that marriage creates the most important
relation in life, which influences morality and civilization of people, than any other institution.
During infancy and impressionable age, the care and warmth of both the parents are I required
for the welfare of the child and we do hope that in this case the Petitioner 1 and Respondent
No.2, the parents, would realize what their responsibility should be and set right their broken
home for the sake of their child