Custody of child
Capacity of child to form independent decision—Duty of Court—Twenty two years old son was assessed to possess cognitive abilities of an eight to ten years child—Since the child cannot make independent decisions, it is the duty of the Court, under the parens patriae doctrine, to determine the course of action that would best serve his interests and welfare.
[Para 24]
Comity of court—Best interest of child—Principle of comity of courts and a pre-existing order of a Foreign Court must yield to the best interests of the child, especially when the Court has decided to conduct an elaborate enquiry in this regard—Such cases must be decided on the sole and predominant criterion of ‘what would serve the interests and welfare’ of the minor—Pre-existing order of a Foreign Court is merely one of the circumstances to consider when assessing the best interests and welfare of the person concerned—This doctrine was evolved to protect children who may, unwittingly, become collateral damage in their parents’ legal disputes—It has gained significance over the past several years, owing to the frequency and ease of migration.
[Para 31]
Consideration—To consider the interests of the child, the Court must take into account all attending circumstances and the totality of the situation—Court must consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare including stability and security, loving and understanding care and guidance, and full development of the child’s character, personality, and talents—Court has to give due weightage to the child’s ordinary contentment, health, education, intellectual development, favourable surroundings, and future prospects—Further, over and above physical comforts, moral and ethical values also have to be taken note of, as they constitute equal if not more important factors than the others.
[Para 32]