In the Eyes of the Law: Why the Child’s Welfare Comes First in Custody Cases
When families break down, whether through separation, conflict, or emotional distance, children often become the silent sufferers. At No Broken Family, we deeply believe that the child must never become a battleground—and thankfully, the Indian judiciary echoes this sentiment.
Whether it’s a court battle or a family mediation session, one guiding principle stands tall:
The welfare of the child is paramount.
Let’s look at how this principle has been upheld by the courts, and why it forms the foundation of our mediation work at No Broken Family, helping families resolve custody disputes compassionately—without courtrooms if possible.
In Indian jurisprudence on child custody, one principle reigns supreme — the welfare of the child. Time and again, courts have reiterated that in any custodial arrangement, it is not the rights of the parents, but the holistic well-being of the child that must guide the decision. This sentiment has found resonance across High Courts and the Supreme Court, as evident from recent rulings that compassionately and pragmatically center the child’s emotional,
psychological, educational, and overall developmental interests.
In Shilpa Aggarwal v. Arun Aggarwal, (2010) 1 SCC 591, the Hon’ble Supreme Court
emphasized this principle unequivocally:
“In our opinion, the apprehension of the appellant that the child may not be brought back to
India is not well founded… It is well settled that the paramount consideration in such matters is
the welfare of the child and not the legal rights of the parties.”
This case involved a custodial dispute where the child had been taken abroad, and the issue was
whether repatriation to India would be in the child’s interest. The Court held that even
international location of the child cannot override the child’s welfare and stability.
Reinforcing this view, the Delhi High Court in Amit Kumar v. State (Govt. of NCT of Delhi) &
Anr., 2023 SCC OnLine Del 5174, ruled in a habeas corpus petition for child custody. The Court relied on a slew of judgments to hold that while biological or legal entitlements are important, they are subservient to the overarching test of what arrangement best ensures the child’s well
being.
Justice Swarana Kanta Sharma, delivering the judgment, observed:
“The issue of custody of the child is not to be decided in a mechanical manner. It has to be
decided bearing in mind the totality of the circumstances and considering the paramount interest
of the child which is always uppermost in the mind of the Court.”
The Court reviewed the circumstances — including the child’s education, emotional bond with
the mother, age, and consistency of care — before dismissing the father’s custody claim.
Importantly, it held that:
“While deciding the issue of custody of a minor child, it is the welfare of the child and not the
legal right of either parent which is of paramount importance.”
The Court also drew guidance from precedents such as Roxann Sharma v. Arun Sharma, (2015)
8 SCC 318 and Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, reinforcing that the
child’s interests include not just physical comfort but also love, affection, security, education,
and a healthy atmosphere.
These cases demonstrate that courts have moved beyond narrow constructs of parental
entitlement. Instead, they engage with the lived reality of the child — recognizing that a
nurturing, emotionally secure, and stable environment is what truly serves the child’s welfare.
As family law continues to evolve, this child-centric approach stands as a moral and legal
compass, guiding decisions that shape young lives during some of their most vulnerable
moments.
What the Supreme Court Says: Welfare Over Rights
In the recent Supreme Court decision in Somprabha Rana & Ors. v. State of Madhya Pradesh
& Ors. [2024 INSC 664], the Court dealt with a heartbreaking situation involving the custody of
a young child whose mother had tragically died. While the father and paternal family sought
custody through a Habeas Corpus petition, the child had been in the continuous care of her
maternal relatives for over 18 months.
The Supreme Court strongly criticized the High Court for disturbing the child’s existing custody
without evaluating the child’s emotional wellbeing:
“The Court cannot treat the child as a movable property and transfer custody without even
considering the impact… Such issues cannot be decided mechanically. The Court has to act
based on humanitarian considerations. After all, the Court cannot ignore the doctrine of parens
patriae.”
— Justice Abhay S. Oka, Supreme Court of India
In simpler terms, the child’s comfort, continuity, and psychological safety matter more than
any biological or legal title to custody. This decision echoes our own philosophy at No Broken
Family—to build solutions that don’t traumatize the child for the sake of “winning” custody.
At No Broken Family, the Child Comes First—Always
Our mediation services across Delhi NCR—including Dwarka, Noida, Gurgaon, and West
Delhi, South Delhi—are built on the same values the courts are now reinforcing:
• We listen to the child’s needs, not just the parents’ narratives.
• We create non-adversarial settings where the child doesn’t feel like a pawn.
• We help families understand why emotional wellbeing is more important than legal
entitlement.
Whether you are a separated parent, grandparent, or adult sibling involved in a custody situation,
we support court-free, respectful dialogue to protect what truly matters: your child’s mental
and emotional safety.
Why Choose Mediation Over Litigation for Custody?
Many parents ask us: “Isn’t court better to get full custody?” Our answer: only when there’s no
other way.
Mediation offers a child-sensitive, time-efficient, and emotionally safe environment to resolve
custody issues.
Here’s what mediation enables:
• Personalised parenting plans that meet the child’s routine and emotional needs
• Space to hear the child’s voice (if age-appropriate)
• Easier modification of access and visitation arrangements
• No public litigation, no labels like “winner” or “loser”
• Healing, not hostility
Searching for divorce mediation near me or legal mediation services in Delhi NCR? We offer
both emotional and legal clarity to help you do what’s best for your child.
Let’s Talk, Before the Court Does
Don’t wait for a judge to decide what your child’s life will look like. Let’s have a conversation.
A real one—with warmth, understanding, and compassion.
Locations Served: Delhi, Noida, Gurgaon, Dwarka, Ghaziabad, Faridabad
Call us now: +91 98918 27147
Visit: www.nobrokenfamily.in
Ask us about our child-focused mediation packages and parenting plans.