Issue 3 respondent

Whether the best interest and welfare of the minor child, Preet, will be served by
granting custody to Harsh?

It is respectfully submitted before this Hon'ble Court that the best interest and
welfare of the minor child, Preet, will not be served by granting custody to Harsh,
the petitioner. From the very conception of the child, it has been the respondent,
Rhythm, who has been the primary caregiver, providing nearly exclusive care and
nurturing to their daughter. The petitioner, Harsh, has shown scant interest in the
well-being of his family and his involvement in the child’s upbringing is notably
absent from the records. Furthermore, the statutory provisions governing the
custody of a minor under the age of five clearly mandate that the custody of the
child should be entrusted to the mother, in this case, the respondent.

As per Section 6 of the Hindu Minority and Guardianship Act, 1956 (HMGA)¹, it is
provided that:"The natural guardian of a Hindu minor, (a) in the case of a boy or
an unmarried girl—the father, and after him, the mother: provided that the
custody of a minor who has not completed the age of five years shall ordinarily be
with the mother."In the present case, the minor child, Preet, is below five years of
age, and as such, the custody should ordinarily be with the mother, i.e., the
respondent. Therefore, the petitioner, Harsh, cannot claim custody of the minor
under the existing statutory framework.

Further, Section 13 of the HMGA underscores the paramount importance of the

welfare of the minor in custody matters, providing:"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."In support of this case, the
Respondent's counsel relies on the judgment in Pushpa Singh v. Inderjit Singh²,
where the Court emphasized the paramount consideration of the welfare of the
minor, particularly in the case of an unmarried daughter under the age of five
years. The law is clear that in such cases, the welfare of the child dictates the
awarding of custody, and the best interests of the minor child can only be served
by entrusting the custody to the mother.

 Interpretation of "Welfare" of the Minor:

The paramount consideration in matters concerning the custody of a minor has

been well-established by this Hon’ble Court in various rulings. In Thrity Hoshie
Dolikuka v. Hoshiam Shavaksha Dolikuka³, the Court stated, "The principles of
law in relation to the custody of a minor appear to be well-established. It is well
settled that any matter concerning a minor, has to be considered and decided
only from the point of view of the welfare and interest of the minor." Similarly, in
Mt. Mansa Devi v. Makhar,⁴ the Court emphasized that the term "welfare"
encompasses both material and spiritual welfare. Further, in Ram Prasad v.
District Judge, Gorakhpur,⁵ the Allahabad High Court held that "welfare" means
not just material welfare but also moral welfare.In Re McGrath (Infants)⁶, Lindley
J. observed, “The dominant matter for the consideration of the court is the
welfare of the child. But the welfare of the child is not to be measured by money
only, or by physical comfort only. The word 'welfare' must be taken in its widest
sense.” In present case, just providing for the material needs of the child will not
amount to the best interest of the child as there is no point in giving a child a
silver spoon if there is no one to feed the child or show her how to use the
spoon.Therefore, applying these principles, it is humbly contended that the
welfare of the minor child, Preet, will best be served if she remains in the custody
of her mother, Rhythm.

As was observed In Gaurav Nagpal v. Sumedha Nagpal⁷ (2009) 1 SCC 840, the
Supreme Court clarified that the welfare of the child is the guiding principle in
awarding custody, and a parent’s right cannot trump the child’s best interest. The
Court further recognized that if a father’s environment does not serve the best
interests of the child, the mother may be granted custody, even though the father
may legally be the natural guardian.. In the present case, the petitioner, Harsh,
leads a bachelor lifestyle, prioritizing his career over his familial duties, frequently
staying out late, and traveling often for work. The absence of a nurturing
environment provided by Harsh poses a grave concern for the minor’s welfare,
particularly her moral and ethical upbringing.The factors determining the
principle of welfare and best interest principle were laid down in Lahari
Sakhamuri v. Sobhan Kodali and it was also given that the moral character of the
guardian played a very important role.

 Maternal Care and the Role of the Father

The principle that the welfare of the child outweighs the rights of the parents is
reinforced by the legislative stand in Section 57(4) of the Juvenile Justice (Care and
Protection of Children) Act, 2015 (JJ Act),⁸which prohibits a single or unmarried
male from adopting a girl child. While this provision may not be directly applicable
in the present case, it demonstrates the legislature’s stance regarding the
capacity of a single male to adequately care for a child, particularly in terms of
nurturing and emotional care, which are essential for a minor's welfare.
It is well-documented that children under five require constant and consistent
care, which is essential for their emotional and psychological development. Lack
of maternal care during this critical stage can lead to emotional attachment issues
and developmental challenges. According to a policy brief by the Pakistan
Alliance for Early Childhood⁹, maternal mental health plays a significant role in
the child’s emotional development during pregnancy and postpartum
(https://www.pafec.org/maternal-mental-health-and-its-impact-on-early-
childhood-development-ecd/?utm_source=chatgpt.com)Appointing a nanny
cannot replace the nurturing environment a mother provides. Studies, including
the Journal of Child Psychology and Psychiatry, highlight that reliance on nannies
may lead to emotional detachment and developmental challenges. Research in
the Journal of Child and Adolescent Psychopathology¹⁰ emphasizes that early
mother-infant interactions shape social, cognitive, and emotional development,
influenced by maternal personality and emotional well-being (BMC Psychology,
2020)(https://bmcpsychology.biomedcentral.com/articles/10.1186/s40359-020-
00407-3)

 Employment and Work-Life Balance Considerations:

The court’s evaluation of work-life balance is crucial when considering custody

matters. Harsh, despite his professional success as a Vice President at a reputed
company, has failed to provide the emotional and physical support necessary for
Preet’s well-being. His demanding job often keeps him away from home, and his
work schedule leaves little room for nurturing his child. This behavior clearly
demonstrates his neglect and indifference towards the emotional and
psychological needs of his daughter, Preet.. The case of Gionet v. Gionet¹¹
illustrates how courts emphasize stability in the child's environment and the
ability of the parents to balance work and family responsibilities. Similarly, in
Bristow v. Bristow,¹² the court granted custody to the mother because, despite
both parents utilizing babysitters, the father's frequent business trips and limited
involvement in the child’s upbringing rendered him less suited for custody.

 Continuation of Maternal Care and Emotional Stability:

In the present case, the respondent, Rhythm, has demonstrated a profound

commitment to the welfare of her daughter, Preet. Despite enduring emotional
distress from marital discord, Rhythm has continued to care for Preet, ensuring
that her safety, mental health, and stability are prioritized. Rhythm’s decision to
leave Harsh’s house and return to her parents’ home was made with the intention
of providing Preet a nurturing environment, free from the toxic emotional
conflicts present in the marriage. This is further supported by the ruling in Roxann
Sharma v. Arun Sharma¹³(2015) 8 SCC 318, where the Court acknowledged that a
parent’s emotional stability and ability to provide a nurturing environment were
crucial in determining custody.

In Asha Bhosle v. Sangeeta Bhosle¹⁴ (2008) 2 SCC 375, the Court noted that a
parent’s resilience, despite personal hardships, is indicative of their capacity to
provide a nurturing environment. Similarly, in Surjit Kaur v. State (2006) 8 SCC
280, the Court observed that a parent’s ability to protect and support the child,
even in the face of personal difficulties, is the overriding factor in determining
custody.
  It is most humbly submitted that the best interest and welfare of the minor
child, Preet, will be served by granting custody to Rhythm, the mother, who
has demonstrated an unwavering commitment to her daughter's
emotional, physical, and moral well-being. The petitioner, Harsh, despite
his status and financial capacity, has failed to provide the necessary care
and emotional support for his daughter. Therefore, it is respectfully prayed
that this Hon’ble Court grant custody to the respondent, Rhythm, as it
aligns with the paramount principle of the welfare of the child.