Author
Mr Sugandh Saksena
Organisation/Institution
National Law School of India University
Country
INDIA
Panel
Children and Law
Title
Reviewing the ‘Welfare Principle’ in Child Custody Disputes through the lens of Right to Participation: An Indian Perspective
Abstract
The need to review the welfare principle primarily arises for the limited scope it holds within the Indian law on custody and guardianship, when compared to its internationally recognized counterpart, the ‘best interest principle’. This might as well hold true to other Asian countries, being largely drawn from similar colonial source. The essence of the two principles remaining the same, the ‘welfare principle’ predates the ‘best interests’ principle’ under the aegis of UNCRC. Despite their jurisprudential similarity, there appears a remarkable difference in their scope within the respective legal frameworks and contexts. The ‘best interest principle’, under the Convention on the Rights of Child does not merely apply to individual cases nor is limited only to judicial decisions, but is a procedural right as well. The inclusion of legislative bodies within the purview of art. 3, UNCRC further validates the same. This implies that not merely the substantive law and judicial decisions, but also the procedure involved must adhere to the ‘best interests’ of children. However, when it comes to the scope and context of the ‘welfare principle’ as enshrined under the Guardians and Wards Act 1890, as well as under the respective personal laws in India, it may be inferred that the same is not only limited to individual cases, but also to the decisions in such matters. In this regard, the ‘welfare’ principle within the realm of child custody and guardianship law in India appears narrower in its scope. Through this paper, the author tends to elucidate a comparison on the scope of the two principles and suggest how the principle of participation can possibly fill the gap. Keywords: Best interest, Custody, Guardianship, Participation
Biography
The author is a research scholar at National Law School of India University, Bengaluru (India), and is currently an Assistant Professor at Christ University Bengaluru. His core research interest falls within the domain of Family Law and child rights. Apart from his research, he also holds a teaching interest broadly in Constitutional Law and Law of Contracts as well. He has been a participant and a presenter in several national and international conferences, including the ASLI conference as well. An avid writer, he also has contributions to the print media on topics of socio-legal significance to his credit.
