Child Custody Jurisprudence in India: The Paramount Welfare Principle and the Parental Rights

This paper critically analyzes the evolving quirk of child custody jurisprudence in India, focusing on the conceptual legal problems between statutory parental rights and the judicially enforced principle of “supreme welfare of the child”. and various religious personal laws, including the Hindu Minority and Guardianship Act, 1956, and Islamic principles of Hizanat (custody) and Wilayah (guardianship). Historically, these statutory regimes have displayed a deep paternalistic bias, positioning the father as the primary parent.This paper assesses how the Indian judiciary has used its parens patriae jurisdiction to multiply over the ever-strict legislative parental mandates of the physical, emotional and mental well-being of the child. Through a detailed analysis of landmark decisions of the Supreme Court, including Anjali Kapoor v Rajiv Baijal and Nil Ratan Kundu v. Abhijeet Kundu, we show that statutory custody rights are not absolute and may generally lean to the overall growth of the child. In addition, the paper examines gender-related inequalities, investigating the constitutional challenge to Section 6 (a) of the Hindu Minority and Guardianship Act and the subsequent harmonious construction of the judiciary in Geeta Hariharan v. RBI case to uphold maternal rights under Articles 14 and 15 of the Constitution of India. Furthermore, the paper addresses custody disputes in transnational contexts. Given that India is not a signatory to the 1980 Hague Convention on Civil Aspects of International Child Abduction, Indian courts have struggled to balance the global principle of “community of courts” with the needs of domestic child welfare. The paper traces the judicial evolution of this war, reading the shift from comity-centric “first strike” rules in the case of Surya Vadanan v. State of Tamil Nadu, to strongly child-centric techniques in Nithya Anand Raghavan case and Yashita Sahoo v. Rajasthan case. The examination also assesses the current push towards the joint protection and shared custody model proposed in the 257th Report of the Law Commission of India. The paper concludes with suggestions for formal codification of shared parentage to minimize adverse custody battles and guarantee lasting improvement of the child.