In cases regarding custody, the best interests of the minor are given primary consideration. While courts often rely on the Act when adjudicating upon matters pertaining to custody of Children, the Act does not explicitly address the issue of custody. As a result, the courts have often applied provisions pertaining to guardianship to matters of custody too, thereby diluting the distinction between the two.
Welfare of the minor is given paramount importance within our domestic jurisprudence. Welfare is determined by taking into account the minor’s age, sex and religion. Weight is also given to the character and capacity of the guardian and his/her nearness of kin to the minor. Preference of the minor is taken into account, if the minor is capable of forming such preference. The minor’s comfort and spiritual and moral well-being along with his/her religion is also considered. Considerable attention is given to the minor’s happiness and emotional attachment with a custodian. It is considered in the interests of the child to live with his/her siblings.
A person who has custody of a minor is responsible to look after the minor with regards to its health, education and support him/her in all respects.
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