The court may, on the application of any person interested or of its own motion, make an order regulating the conduct or proceedings of any guardian appointed or declared by the court.

Where there are more guardians than one and they are unable to agree on a question affecting the ward’s welfare, any of them can apply to the court for its direction, and the court can make any order regarding the matter as it thinks fit.

Except where it appears that the purpose of the above orders would be defeated by the delay, the court will, before making the order, direct notice of the application or the intention to the guardian or the guardian who has not made the application.

In case of disobedience to such order, the order may be enforced in the same manner as an injunction granted under section 492 or section 493 of the Code of Civil Procedure 1882 (14 of 1882).

Younger children should be committed to the custody of their mothers.

Custody of mature boys should be given to their fathers.

Custody of mature girls should be given to their mothers.

In appointing or declaring the guardian of a minor, the court will be guided by the welfare of the minor in the given circumstances.

In considering the welfare of the minor, the courts must have regard to the:

If the minor is old enough to express a reasoned preference, the court may consider that preference.

The court cannot appoint or declare any person to be a guardian against their will.

Age, sex and religion of the minor.

The character and capacity of the proposed guardian.

The closeness of relationship between the proposed guardian and the minor.

The wishes, if any, of a deceased parent.

Any existing or previous relations of the proposed guardian with the minor or his/her property.

Whose property is under the superintendence of the Court of Wards.

Who is a married female and whose husband is not, in the opinion of the court, unfit to be her guardian. This applies to cases where the child was married before attaining the age of majority.

Whose father is living and is not in the opinion of the court, unfit to be the guardian of the minor.

Whose property is under the superintendence of the Court of Wards competent to appoint a guardian of the minor.

Rosy Jacob v Jacob A Chakramakkal (1973) 1 SCC 840). Orders relating to custody of children are, by their very nature, not final but interlocutory and subject to modification at any future time on proof of change of circumstances, requiring change of custody. However, any such change in custody order must be proven to be of paramount interest to the child.

Thrity Hoshie Dolikuka v Hoshaim Shavaksha Dolikuka (1982) 2 SCC 544. In this case, the Supreme Court while adjudicating the custody of the child, held that, the court has a special responsibility and duty to consider the welfare of the minor and to protect the minor's interest. In considering the question of custody, the court must be guided by the only consideration of the welfare of the minor. The case was filed under section 49 of the Parsi Marriage and Divorce Act 1936, and the court did not ascertain the wishes of the child before adjudicating the custody while observing that the minor was not fit to form an intelligent preference which may be taken into consideration in deciding their welfare.

RV Srinath Prasad v Nandamuri Jayakrishna & Ors (2001) 4 SCC 71. In this case, the Supreme Court held that custody of minor children is a sensitive issue. It is also a matter involving sentimental attachment, and must to be approached and tackled carefully. A balance must be struck between the attachment and sentiments of the parties towards the minor children and the welfare of the minors, which is of paramount importance. It was further held that the custody orders by their nature can never be final. However, before a change is made, it must be proved to be of paramount interest to the children. In a sensitive matter like this, no single factor can be taken to be decisive. Neither affluence nor capacity to provide comfortable living should be the consideration of the court.

Rukma Singh and Ors. v Suhaib Ilyasi 2001 (10) SCC 172. This case involved a dispute regarding the custody of a four-year old girl between the father and maternal grandmother and aunt. The Supreme Court held that since the arrangement for custody of the child made by the lower court is an interim arrangement subject to the order in proceedings before the competent court and such proceedings have already been instituted before the Guardianship Court in which a petition for interim custody has been filed. Therefore, the arrangement for custody did not interfere with the order. It was held that the interest of justice will be adequately served if the petition for interim custody of the child is considered by the Guardianship Court expeditiously and the appropriate order is passed.

Keshav R Thakur and Anr v Suchhibai 2005 (9) SCC 424. In this case, the Supreme Court awarded custody of a boy aged 16 to the grandparents over the mother as the child had been living with his grandparents since the age of six.

Premchand Jinrajsa Sahuji v Surendra 2005 (12) SCC 451. In this case, the Supreme Court before deciding the issue of custody of the girl child, directed the High Court to appoint a child psychiatrist to consider adverse psychological impact on the child if the custody of the child was given to the father from the relatives of the dead mother.

Sheila B Das v PR Sugasree 2006 (3) SCC 62. The Supreme Court awarded the custody of a minor girl to the father after speaking to the minor girl, without either of the parents being present, to ascertain her preference in the matter. The 12-year-old child was highly intelligent, having consistently done extremely well in her studies in school, and the court was convinced that despite the dispute between her parents, she would be in a position to make an intelligent choice with regard to her custody. From the discussion with the minor, the Court gathered that although she had no animosity as such towards her mother, she would prefer to be with the father with whom she felt more comfortable. The minor child also informed that she had established a very good relationship with her paternal aunt who was now staying in her father's house and she was able to relate to her aunt in matters which would concern a growing girl during her period of adolescence. In this case, the Court saw no reason to consider the father ineligible to look after the minor. In fact, after having obtained custody of the minor child, the father did not appear to have neglected the minor or her needs. The child appeared to be happy in the father's company and has also been doing consistently well in school. The father appeared to be financially stable and was not disqualified in any way from being the guardian of the minor child. No allegation, other than his purported apathy towards the minor, has been put against the father by the mother. Therefore, it was held that the interest of the minor will be best served if she remains with the father but with sufficient access to the mother to visit the minor at frequent intervals but so as not to disturb and disrupt her normal studies and other activities.

Mousmi Moitra Ganguli v Jayant Ganguli (2008) 7 SCC 673. In this case it was held that it is the welfare and interest of the child and not the rights of the parents which was the determining factor for deciding the question of custody. It was the further view of the Court that the question of welfare of the child had to be considered in the context of the facts of each case and decided cases on the issue may not be appropriate to be considered as binding precedents. The court gave due weight to the child's ordinary well-being, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also been noted. They are equal if not more important than the others.

Gaurav Nagpal v Sumedha Nagpal (2009) 1 SCC 42. In this case, the principles of English and American law were considered by the Supreme Court, which held that the legal position in India was not in any way different. It was held that when the Court was confronted with conflicting demands made by the parents, each time it must justify the demands. The Court must not only to look at the issue of legal basis, but also on human angles which are particularly relevant in those issues. The Court does not put emphasis on what the parties say, it must focus on the welfare of the minor. It was held that the word "welfare", used in section 13 of the Act, must be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also be considered be the Court as well as its physical well-being. Although the provisions of the special statutes which govern the rights of the parents and guardians may be taken into consideration, there is nothing that can stand in the way of the Court exercising its parens patriae jurisdiction in such cases.

Gaytri Bajaj vs Jiten Bhalla 2012 (12) SCC 471/ 478. In this case, the Court held that the wishes of children are of prime importance in determining the custody. An attempt was made by the Court, even by means of a personal interaction with the children, to bring the issue of custody and visitation rights to a satisfactory conclusion. However, from the materials on record, it was possible to conclude that the children, one of whom was on the verge of attaining majority, did not want to live with their mother. Both children appeared to be happy in the company of their father who was in the position to look after them, provide them with adequate educational facilities and bring them up appropriately. The children were reluctant to live with the mother, even for a short duration of time, and the Court held that any visitation right to the mother would be against the best interests of the children.

It was observed that an order of custody of minor children either under the provisions of the Guardians and Wards Act 1890 or Hindu Minority and Guardianship Act 1956 was required to be made by the Court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of either parent that is considered while deciding their entitlement to custody. The desire of the child coupled with the availability of an appropriate environment for proper upbringing as well as the ability and means of the concerned parent to take care of the child are some of the relevant factors that must be taken into account by the Court while deciding the issue of custody of a minor. While all other factors are relevant, it is the desire, the interest and welfare of the minor which is the crucial and ultimate consideration that must guide the determination of the Court.

Dayamanti Hemant Matani v Viren Bhagwandas Asher and Anr (2016 (16) SCC 543). In this dispute between the father and the maternal grandmother, the Supreme Court permitted that the father could take the minor girl abroad for medical treatment and directed that the custody be handed over to the father. It was also directed that the grandmother could stay with the child during the course of the treatment abroad.

There is a restraining order of the court.

The matter adjudicating child custody is pending in the court.

The court has passed an order granting one parent the exclusive custody of the child.

Such action is objected to by the other parent.

Moving residence due to new jobs.

Settling down in their home town after the divorce.

Cases where one parent returns from a foreign country and now settles down in India.

The person is the collector (that is, a guardian looking after the property of a minor). “Collector” means the chief officer in charge of the revenue-administration of a district and includes any officer whom the State Government appointed to be a collector in any local area or with respect to any class of persons.

The guardian is appointed by will or another instrument.

The age, sex and religion of the minor are important.

In most cases, the mother gets the custody of the minor child specially when the child is under the age of five.

The character and capacity of the proposed guardian is considered very carefully by the courts and they usually reject baseless allegations against the mother.

Fathers are usually given the custody of older male children and mothers are given custody of older female children. However, this is not a strict rule and the decision must be made while keeping the interest of the child in mind.

When the child is above the age of nine, his/her opinion on the choice of parent should be considered, as the child is thought to have gained rationality in decision-making and have sufficient understanding.

Due to the undisputed care and affection of a mother towards her child, she is given custody of the child. However, she may be refused custody due to her neglect or ill treatment of the child.

In cases of siblings, courts prefer to keep children united and award custody of both to either of the parents.

The child's intellectual, health, material, comfort, moral and spiritual welfare should also be considered.

A suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void, or, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage.

A suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person.

A suit or proceeding between the parties to a marriage with respect to the property of the parties or one of them.

A suit or proceeding for an order or injunction in circumstances arising out of a marital relationship.

A suit or proceeding for a declaration as to the legitimacy of any person.

A suit or proceeding for maintenance.

A suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

No appeal can be made from a decree or order passed by the family court with the consent of the parties, or from an order passed under Chapter IX of the Code of Criminal Procedure 1973, provided that nothing in this subsection will apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (before the commencement of the Family Courts (Amendment) Act 1991. Chapter IX of the Code of Criminal Procedure contains Section 125 to 128 which deal with order for maintenance of wives, children and parents.

Every appeal under this section must be submitted within a period of 30 days from the date of the judgment or the order of a family court.

The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the family court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure 1973 to satisfy itself as to the correctness, legality or propriety of the order (provided it is not an interlocutory order) and, as to the regularity of such proceeding.

The full name (first, middle and last as shown on the citizenship documentation) of the child.

The child's age at the start of the journey.

The countries that the child will be travelling to.

The start and end date of the travel.

Surinder Kaur Sandhu v Harbax Singh Sandhu (AIR 1984 SC 1224). This is one of the earliest judgments, in which the Supreme Court held that the modern theory of conflict of laws recognises and prefers the jurisdiction of the state which has the most intimate contact with the issues arising in the case. The Supreme Court held that jurisdiction was not decided by incidental factors such as where the child was taken or was for the time being lodged. To allow the assumption of jurisdiction by another state in such circumstances would encourage forum shopping. Ordinarily jurisdiction must follow on functional lines. For example, in matters relating to matrimony and custody, the governing law is that of place which has the closest link with the well-being of the spouses and the welfare of the offspring of the marriage.

Elizabeth Dinshaw v Arvand M Dinshaw & Anr (1987) 1 SCC 42. In this matter, the Supreme Court of India held that, whenever a question arises before a court relating to the custody of a minor child, the matter must be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would serve best the interest and welfare of the minor.

Dr V Ravi Chandran v Union of India & Ors (2010) 1 SCC 174. This was a ground-breaking case in which the mother and father lived in the US and litigated in the US courts, leading to a consent order regarding their child. Subsequently the mother came to India with the child in violation of the US court order and was untraceable. In this case, the Supreme Court directed the Central Bureau of Investigation (CBI) to find the child as the mother fled from the course of justice. The Supreme Court of India held that the US court was the only competent court to adjudicate disputes relating to the child and, if the mother had any grievance, she could seek modification of the consent order in the US court. The Supreme Court explicitly ordered that if the parties did not return to the jurisdiction of the US courts within the stipulated time to settle their disputes regarding child custody, the child would be handed over to the petitioner father. However, the case continued. The mother sought an extension of time to return to the jurisdiction of the US courts to obtain her visa, but afterwards was untraceable. The Honourable Supreme Court again directed the CBI to trace the child. This time after the child was traced, the Supreme Court directed the CBI to hand over the child to the father. The child was recovered by CBI in Chennai and handed over to the father and they returned to the jurisdiction of US courts.

Shilpa Aggarwal v Aviral Mittal (2010) 1 SCC 591 . In this case, both the parties, who were permanent residents of the UK, visited India with their three-year-old daughter. The wife refused to return to her matrimonial home in the UK with the daughter. The husband filed for the custody of his daughter. The Supreme Court of India held that matters of child custody should be adjudicated by the courts that had the most intimate contact with the issue in question. The Supreme Court placed reliance on the principle of comity of courts and the best interest of the child and directed that the final decision with regard to the custody of the child should be taken by the English courts where both the parents permanently resided.

While dealing with a case of custody of a child removed by a parent from one country to another, in contravention of the orders of the court where the parties had set up their matrimonial home, it was held that the court in the country to which child has been removed must first consider the question of whether the court should either:

Ruchi Majoo v Sanjeev Majoo (2011) 6SCC 479. The Supreme Court clarified that the duty of a court exercising its parens patraie jurisdiction in cases involving custody of minor children is onerous. As welfare of the minor is the paramount consideration, the Supreme Court held that where a foreign court has taken a particular view on any aspect concerning the welfare of the minor, it was not enough for the Indian courts to avoid an independent consideration of the matter. Objectivity is key in these cases. This does not, however, mean that the order passed by a foreign court is not a factor to be kept in mind.

Arathi Bandi V Bandi Jagadrakshaka Rao and Ors. 2013(15) SCC 790. In this case, the Supreme Court followed its ratio in the judgment of Dr V Ravichandran. In that case, it was held that no relief could be granted to the parent whose conduct involves removing the child from the foreign country to India in defiance of the orders of the court of competent jurisdiction. The Supreme Court specifically approved the modern theory of conflict of laws, which prefers the jurisdiction of the state which has the closest contact with the issues arising in the case.

Jitender Arora vs Sukriti Arora 2017 (3) SCC 726. In this case, the dispute involved the custody of a 15-year old girl child who was brought to India by her father. The mother seeking custody of the child filed a habeas corpus petition in India seeking the return of the child to the UK. The Supreme Court kept in mind the wishes of the child, rejected the petition of the mother on the ground that the child was a mature girl of 15 years old and that she was competent to take a decision for herself. It was observed that she unequivocally and without any reservations expressed her desire to be with her father and more importantly, she had very categorically said that she did not want to go to the UK.

Nithya Anand Raghavan vs State of NCT (2017) 8 SCC 454. In this case, the Supreme Court dismissed the petition seeking the return of the child back to the foreign country. The Court held that India courts cannot be stripped of their power to decline the return the child to the native state merely because of a pre-existing order of the foreign court of competent jurisdiction. However, such matters must be considered on case-by-case basis, whether in a summary inquiry or an elaborate inquiry. The Supreme Court reiterated that the exposition in the case of Dhanwanti Joshi is a good law and has been quoted with approval by a three-judge bench of this Court in Dr V Ravi Chandran. The Court also approved the view taken in the case of Dhanwanti Joshi, that among other things, as far as non-Hague Child Abduction Convention countries are concerned, the law is that the Court in the country to which the child is removed, while considering the question, must bear in mind the welfare of the child being of paramount importance and treat the order of the foreign court as only one factor to be taken into consideration.

The summary jurisdiction to return the child must be exercised in cases of acts which could psychologically disturb the child, such as where:

Again, the summary jurisdiction can be exercised only if the court [of the country] to which the child has been removed acts promptly and quickly. The overriding consideration must be the interests and the welfare of the child.

Prateek Gupta vs Shilpi Gupta (2018) 2 SCC 309. In this case, the Supreme Court held that the invocation of the principle of comity of courts and the doctrines of "intimate contact and closest concern" must be judged on the basis of the facts and circumstances of each case. The doctrines of "intimate contact and closest concern" in cases of child abduction indicate that the courts in whose jurisdiction, the child has been living for many years is the court that has the closest contact with the child and therefore is the place where the issues of child custody and ancillary issues should be determined. The Indian courts, undermining such doctrines have held that the ultimate concern should be the welfare of the child, with other factors being of secondary importance. In the process of adjudication on the issue of repatriation, a court can adopt a summary enquiry and order immediate restoration of the child to its native country. If the applicant/parent is prompt and alert in his/her initiative and the existing circumstances justify such course of action to preserve the welfare of the child, such a course can be approved in law, if the relevant factors testify irreversible, adverse and prejudicial impact on the physical, mental, psychological, social, cultural existence of the child. On the other hand, if the applicant/parent is slack and there is a considerable time lag between the removal of the child from the native country and the steps taken for its repatriation, the court would prefer an elaborate enquiry into all relevant aspects bearing on the child, as with the passage of time, the child would have grown roots in the new country and its environment.

It was held that the doctrines of "intimate contact" and "closest concern" are of persuasive relevance, only when the child is uprooted from its native country and taken to a place to encounter foreign environment, language, and culture, which significantly affects its overall growth and upbringing. It has been consistently held that there is no forum convenience in wardship jurisdiction and the court's main task is to secure the welfare of the child.

Kanika Goel v State (2018) 9SCC 578. This is the latest case dealing with the issue of child abduction, where a three-judge bench held that the issue cannot to be decided on the basis of rights of the parties claiming custody of the minor but the focus should remain on whether it is in the best interest of the minor to return to the native country. The fact that the minor child will have better prospects on return to his/her native country, may be a relevant aspect in substantive proceedings for custody of the minor but will not be decisive to examine the threshold issues in a habeas corpus petition. For the purpose of habeas corpus petition, the court will focus on examining the circumstances of the minor who had been removed from the native country and taken to a place to encounter new environment, language, and culture, interfering with his/her overall growth and upbringing, and whether continuing to live there would be harmful. This has been the consistent view of the court as restated in the recent three-judge bench decision in Nithya Anand Raghavan, and the two-judge bench decision in Prateek Gupta.

Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II Regulation).

HCCH Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children 1996 (Child Protection Convention).

Best interests of the child.

Domestic violence or mental or physical cruelty or harassment against the parent who fled with the child.

The parent claiming the return of the child was not exercising the custody rights at the time of the removal.

Grave risk that the child would be exposed to physical or psychological harm.

Currently¸ a petition is pending before the Supreme Court of India seeking directions for formation of guidelines and legislation for international parental child abduction. The Ministry of Women and Child Development in its memorandum of 20 December 2017 constituted the Integrated Nodal Agency (INA) for NRI marital disputes. In order of 27 July 2018, the Ministry of Women and Child Development directed the National Commission for Protection of Child Rights to constitute a mediation cell to resolve cases regarding international parental abduction. This mediation cell was set up on 29 August 2018. The Integrated Nodal Agency (INA) refers cases to the mediation cell, that develops a parental plan and submits post- mediation report to the INA. The mediation process must be completed within six months and the final speaking order is passed by the INA on the basis of the report. An interministerial group has been established, co-chaired by the MWCD & MEA to provide conclusions on the Justice Bindal Committee Recommendations.

**Assisted by Natasha Sahrawat and Gauri Goburdhan, Advocates.