Child custody cases

1. Navin Singh vs Smt. Jyoti Parashar And Anr AIR 2004 All 441, 2004 (4) AWC
3239 – The word guardian used in Section 25 should be read as 'natural guardian'
cannot be accepted. In the present case, the respondent was fully entitled to maintain
the application under Section 25.
2. Jacob A. Chakramakal vs Rosy J. Chakramakal 1973 AIR 2090, 1973 SCR (3)
918 - Section 25 of the Act, he will not be entitled to the custody as it was not in the
welfare of the children. The Supreme Court observed that the father's fitness cannot
override considerations of the welfare of the minor children, and though the father has
been presumed by the statute generally to be better fitted to look after the children, the
Court in each case has to see primarily to the welfare of the children in determining
the question of their custody in the background of all the relevant facts having a
bearing on their health, maintenance and education.
3. Rimy Anthony v Deepa Kurein - Language of Section 25 shows that this section is
attracted only if a ward "leaves or is removed" from the custody of a guardian. Use of
the word "guardian" in Section 25 leaves little doubt that it is the guardian who,
having the care of the person of his ward, has been deprived of the same and is in the
capacity of guardian entitled to seek the assistance of the Court for the return of his
ward to his custody. The court's power under Section 25 of the Act is to be governed
primarily by the consideration of welfare of the minor and the discretion vested in the
Court is to be exercised judiciously. While considering the rival claims for the custody
of the minor child, the Court is bound to pay due regard to the right of the father or
mother to be the guardian. However, in cases of conflict or dispute between the
mother and father about the custody of their children, the approach has to be
somewhat different and if the Court finds that the custody of the father cannot
promote the welfare equally or better than the custody of the mother, then the father
cannot claim any indefeasible right under the Section merely because he is not
disqualified or that he has attachment to his children. In other words, the father's
fitness to be the guardian of the child cannot override considerations of welfare of the
minor children.
4. Hasmat Ali vs Smt. Suraya Begum AIR 1971 All 260 - The mother may have been
in the custody of her minor son at one time which custody has been taken away by the
father and she may under the law of hizanat be entitled to the custody of the minor so
 long as he does not attain the age of seven years but she is not the guardian and under
Section 25 of the Guardians and Wards Act she is not entitled to the custody being
restored to her.
5. Ramesh Chand Saklani vs Ms. Daizy @ Dazy Saklani - Four things are necessary
for entertaining an application U/s 25 of Guardians and Wards Act: Firstly, the
application must be filed by a guardian of the person of the minor. Secondly, the
guardian must have had the custody of the minor. Thirdly, the minor must have been
removed from such custody and lastly, it must in the opinion of the court, be for the
welfare of the minor to return the custody to the guardian.
6. L. Chandran vs Venkatalakshmi And Anr AIR 1981 AP 1 - The father married a
second time and then claimed the custody of the minor from the maternal grand-
parents. This request of the father having been turned down by the maternal grand-
parents, the father moved the District Court under Section 25 of the Guardians and
Wards Act for an order directing the maternal grandparents to deliver the child to him.
That application was opposed by the maternal grand-father on several grounds one of
which was that the child was being brought up by the maternal grandparents from its
birth and that it would be cruel to remove the child from them and deliver it to the
father overruling the argument of the maternal grandparents that under Section 25 of
the Guardians and Wards Act the Court has to consider whether it would be for the
welfare of the child to direct the return of the child to the custody of the father, the
District Court ordered in that case the child to be handed over to the father mainly on
the basis of the father's right to his child's custody. Appeal by grandparents also
dismissed by HC. "when the guardian of the person of a Ward applied for the custody
of the ward, he is only asking the Court to help him to discharge the duty cast on him
by law, with reference to his ward and it is for those who oppose such an application
to make out that the welfare of the ward will be better served by its being kept out of
the custody of its guardian and retained in the custody of the person against whom the
application is made ........, the father has, therefore, a paramount right to the custody of
has children of which he can-not be deprived unless it is clearly shown that be is unfit
to be their guardian.
7. Sarada Nayar v. Vayankara Amma and Others-1957 KHC 100: 1957 KLT 466:
1957 KLJ 424: AIR 1957 Ker. 158 -Meaning of "custody" and "removal": Keeping
away the ward from the control or custody of the guardian will also amount to
removal of the ward in a general sense. Hence, S.25 is not confined to cases of
separation or removal of the ward from the actual custody of the guardian but is
equally available to guardians who had only legal for constructive custody of the
ward.