Adoption:

 The Juvenile Justice (Care and Protection of Children), 2015 defines adoption as “the process
through which the adopted child is permanently separated from his biological parents and
becomes the lawful child of his adoptive parents with all the rights, privileges and
responsibilities that are attached to a biological child.”
 In legal term, adoption refers to a legal proceeding that develops a parent-child relation
between persons not related by blood; therefore, creating a non-biological relation between
the parent and the child.
 The adopted child receives the same privileges as the natural child of the adoptive child,
therefore creating no difference between the two except that of blood.
 Adoption was prevalent in ancient India due to cultural and religious reasons. A prominent
reason for this being the need of a son during funerary rights which are practiced until today.

Hindu law:

 Hindu law is the only law that gives single parents and couples the power to  adopted a child
as an equal to a natural child because of the notion that a son is necessary for the family’s
material well-being.
 Earlier, Hindu law allowed the adoption of only a male child and many rules and limitations
on Caste were enforced- adoption of female child was prohibited.
 Such constraints have changed with the course of time.
 At present, under modern Hindu law, any Hindu male or female has the right to adopt if he
or she has achieved the majority and is of sound mind.

Hindu Adoption and Maintenance Act, 1956.

 This act regulated the method and process of adoption.

 Section 6 lays down the requisites of Valid Adoption:
 No adoption shall be valid unless:
ᴏ (i) the person adopting has the capacity, and also the right, to take in
adoption;
ᴏ (ii) the person giving in adoption has the capacity to do so;
ᴏ (iii) the person adopted is capable of being taken in adoption; and
ᴏ (iv) the adoption is made in compliance with the other conditions mentioned
in this Chapter.
 Section 7: Capacity of a male Hindu to take in adoption
 Any male Hindu who is of sound mind and is not a minor has the capacity to takes on
or a daughter in adoption- provided with the consent of his wife.
 Section 8: Capacity of a female Hindu to take in adoption
 Any female Hindu who is of sound mind and is not a minor has the capacity to take a
son or daughter in adoption- provided with the consent of her husband.
 Section 9: Persons capable of giving in adoption
 (1) No person except the father or mother or the guardian of a child shall have the
capacity to give the child in adoption.
 (2) Subject to the provisions of sub-section (4), the father or the mother, if alive, shall
have equal right to give a son or daughter in adoption- but not without the consent
of the other unless one of them has completely and finally renounced the world or
has ceased to be a Hindu or has been declared by a court of competent jurisdiction
to be of unsound mind.
  (4) Where both the father and mother are dead or have completely and finally
renounced the world or have abandoned the child or have been declared by a court
of competent jurisdiction to be of unsound mind or where the parentage of the child
is not known, the guardian of the child may give the child in adoption with the
previous permission of the court to any person including the guardian himself.
 (5) Before granting permission to a guardian under sub-section (4), the court shall be
satisfied that the adoption will be for the welfare of the child, due consideration
being for this purpose given to the wishes of the child having regard to the age and
understanding of the child and that the applicant for permission has not received or
agreed to receive and that no person has made or given or agreed to make or give to
the applicant any payment or reward in consideration of the adoption except such as
the court may sanction
 For the purpose of this section:
ᴏ the expressions “father” and “mother” do not include an adoptive father
and an adoptive mother;
ᴏ “guardian” means a person having the care of the person of a child or of
both his person and property and includes-
 (a) a guardian appointed by the will of the child's father or mother,
and
 (b) a guardian appointed or declared by a court;
 Section 10: Persons who may be adopted:
 No person shall be capable of being taken in adoption unless the following
conditions are fulfilled, namely-
ᴏ (i) he or she is a Hindu
ᴏ (ii) he or she has not already been adopted
ᴏ (iii) he or she has not been married, unless there is a custom or usage
applicable to the parties which permits persons who are married being taken
in adoption
ᴏ (iv) he or she has not completed the age of fifteen years, unless there is a
custom or usage applicable to the parties which permits persons who have
completed the age of fifteen years being taken in adoption.
 Section 11: Other conditions for valid adoption:
 In every adoption, the following conditions must be complied with:
o (i) if the adoption is of a son, the adoptive father or mother by whom the
adoption is made must not have a Hindu son son’s son or son’s son’s son
(whether by legitimate blood relationship or by adoption) living at the time
of adoption;
o (ii) if the adoption is of a daughter, the adoptive father or mother by whom
the adoption is made must not have a Hindu daughter or son’s daughter
(whether by legitimate blood relationship or by adoption) living at the time
of adoption;
o (iii) if the adoption is by a male and the person to be adopted is a female,
the adoptive father is at least 21 years older than the person to be adopted;
o (iv) if the adoption is by a female and the person to be adopted is a male,
the adoptive mother is at least 21 years older than the person to be
adopted;
 o (v) the same child may not be adopted simultaneously by two or more
persons;
o (vi) the child to be adopted must be actually given and taken in adoption by
the parents or guardian concerned or under their authority with intent to
transfer the child from the family of its birth [or in the case of an abandoned
child or a child whose parentage is not known, from the place or family
where it has been brought up] to the family of its adoption.
 Section 12: Effects of adoption:
 An adopted child shall be deemed to be the child of his or her adoptive father or
mother for all purposes with effect from the date of the adoption and from such
date all the ties of the child in the family of his or her birth shall be deemed to be
severed and replaced by those created by the adoption in the adoptive family:
 Provided that:
ᴏ (a) the child cannot marry any person whom he or she could not have
married if he or she had continued in the family of his or her birth;
ᴏ (b) any property which vested in the adopted child before the adoption shall
continue to vest in such person subject to the obligations, if any, attaching to
the ownership of such property, including the obligation to maintain
relatives in the family of his or her birth;
ᴏ (c) the adopted child shall not divest any person of any estate which vested
in him or her before the adoption.
 Section 15: Valid adoption not to be cancelled-
 No adoption which has been validly made can be cancelled by the adoptive father or
mother or any other person, nor can the adopted child renounce his or her status as
such and return to the family of his or her birth.

Guardians and Wards Act, 1980

 Muslim, Christian and Parsi do not have any Act or law that governs adoption proceedings.
 The Act allows for “Guardianship” but doe not allow complete adoption.
 A child is held to be a “ward” and the interested couple their “guardian”.

THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015: Chapter VIII

 Section 56: Adoption:

 (1) Adoption shall be resorted to for ensuring right to family for the orphan,
abandoned and surrendered children, as per the provisions of this Act, the rules
made thereunder and the adoption regulations framed by the Authority.
 (2) Adoption of a child from a relative by another relative, irrespective of their
religion, can be made as per the provisions of this Act and the adoption regulations
framed by the Authority.
 All inter-country adoptions shall be done only as per the provisions of this Act and
the adoption regulations framed by the Authority
 Section 57: Eligibility of prospective adoptive parents
 (1) The prospective adoptive parents shall be physically fit, financially sound,
mentally alert and highly motivated to adopt a child for providing a good upbringing
to him.
 (2) In case of a couple, the consent of both the spouses for the adoption shall be
required.
  (3) A single or divorced person can also adopt, subject to fulfilment of the criteria
and in accordance with the provisions of adoption regulations framed by the
Authority.
 (4) A single male is not eligible to adopt a girl child
 (5) Any other criteria that may be specified in the adoption regulations framed by
the Authority.
 Section 63: Effect of adoption.
 A child in respect of whom an adoption order is issued by the court, shall become
the child of the adoptive parents, and the adoptive parents shall become the parents
of the child as if the child had been born to the adoptive parents, for all purposes,
including intestacy, with effect from the date on which the adoption order takes
effect, and on and from such date all the ties of the child in the family of his or her
birth shall stand severed and replaced by those created by the adoption order in the
adoptive family:
 Provided that any property which has vested in the adopted child immediately
before the date on which the adoption order takes effect shall continue to vest in the
adopted child subject to the obligations, if any, attached to the ownership of such
property including the obligations, if any, to maintain the relatives in the biological
family.
 Section 65: Specialised adoption Agencies.
 Section 67: State adoption Resource Agency.
 Section 68: Central Adoption Resource Authority. (CARA)
 The Central Adoption Resource Agency existing before the commencement of this
Act, shall be deemed to have been constituted as the Central Adoption Resource
Authority under this Act to perform the following functions, namely:
ᴏ (a) to promote in-country adoptions and to facilitate inter-State adoptions
in co-ordination with State Agency
ᴏ (b) to regulate inter-country adoptions;
ᴏ (c) to frame regulations on adoption and related matters from time to time
as may be necessary;
ᴏ (d) to carry out the functions of the Central Authority under the Hague
Convention on Protection of Children and Cooperation in respect of Inter-
country Adoption; (1993, ratified by India in 2003)
ᴏ (e) any other function as may be prescribed

CARA guidelines:

 3. Fundamental principles governing adoption:

 (a) The child's best interest shall be of prime importance while deciding any
placement;
 (b) Preference shall be given to place the child in adoption within the country;
 (c) Adoption of children shall be guided by a set procedure and in a time bound
manner;
 (d) No one shall derive any gain, whether financial or otherwise, through adoption
 4. Persons competent to be adopted:
 Any orphan, abandoned or surrendered child can be adopted following due
procedure laid down in these Guidelines if such child is declared legally free for
adoption by the Child Welfare Committee (CWC)
  5. Persons competent to Adopt:
 (a) To an individual irrespective of his or her marital status; or
 (b) To parents to adopt a child of the same sex irrespective of the number of living
biological sons or daughters; or
 (c) To a childless couple.
 6. Additional Eligibility Criteria for Prospective Adoptive Parents (PAPs)
 (1) No child may be given in adoption to a couple unless they have at least two years
of stable marital relationship.
 (2) Couples in live-in relationship are not eligible to adopt a child.
 (3) To adopt a child in the age group of 0-3 years, the maximum composite age of
the PAPs should be 90 years wherein the individual age of the PAPs should not be
less than 25 years and more than 50 years.
 (4) To adopt children above three years of age, the maximum composite age of the
PAPs should be 105 years wherein the individual age of the PAPs should not be less
than 25 years and more than 55 years.
 (5) In case a single PAP desires to adopt, he or she should not be less than 30 years
of age and shall not be above the age of 50 years. The maximum age shall be 45
years to adopt children in the age group of 0-3 years and 50 years for adopting
children above 3 years.
 (6) The PAPs should have adequate financial resources to provide a good upbringing
to the child.
 (7) The PAPs should have good health and should not be suffering from any
contagious or terminal disease or any such mental or physical condition, which may
prevent them from taking care of the child.
 (8) Adoption of a second child is permissible only when the legal adoption of the
first child has been finalized but this is not applicable in case of siblings.
 (9) An un-married or single male person is not permitted to adopt a girl child.
 7. Procedure for Adoption:
 The PAPs may adopt a child in accordance with the procedure, namely: -
ᴏ The Indian PAPs habitually residing in India shall adopt a child only through a
Government recognised adoption agency known as Specialised Adoption
Agency.
ᴏ (b) The PAPs shall register only with one recognised adoption agency, which
should preferably be nearest to their place of residence.
ᴏ (c) The PAPs in India can also register online at www.adoptionindia.nic.in
ᴏ (d) The PAPs residing abroad shall adopt children only through CARA
authorised agencies known as Authorized Foreign Adoption Agency(AFAA).
ᴏ (e) The PAPs should register with an AFAA or Central Authority nearest to
their place of residence.
ᴏ (f) In countries where there is no AFAA or Central Authority, the Indian
nationals may approach the Indian High Commission or Embassy for
processing and forwarding their case to CARA.
 (2) After registration, the PAPs shall follow the adoption procedure as provided in
these Guidelines and as per the details given in CARA’s website
www.adoptionindia.nic.in

Cases:
 Hanmant Laxman salunke v Shrirangnarayan kanse, (2006), Bombay HC held that while a
custom permits adoption above 15 years, but the age difference between adoptive mother
and the adopted son was less than 21 years. The adoption was held to be invalid. (Section 10
of Hindu Adoption Act)
 Oriental insurance Co. Ltd . v Lalitha sharma, 2006, SC, mere fact of child living with father
and step mother is not a proof of adoption.
 In Re: Adoption of Payal Sharinee Vinay Pathak and his wife Sonika Sahay Pathak- (2010)
The question arose whether a Hindu couple having a natural child could adopt a child of the
same gender under the provisions of JJ Act.?
 Court held that the JJ Act provided for the adoption of children who are abandoned
and are need of care and protection. Therefore, they are a specific and distinct
category of children. Although, Hindu Adoption and Maintenance Act imposes a
restriction, but it has to be read harmoniously with the JJ Act. Therefore, a child
could be adopted by a Hindu couple under JJ act if the child completed the
description of the specific category of children for whom the JJ Act was enacted.
 Shabnam Hashmi v. UOI (2014)
 In this case the petitioner was a Muslim who had adopted a young girl when she was
small.
 She filed a petition for recognition of the right that a person belonging to any religion
could adopt a child since Muslim Law did not allow for adoption.
 The SC held that the Juvenile Justice Act was an enabling legislation and it aims at
achieving the purpose of Uniform Civil Code.
 Thus, it was held that any person belonging to any religion could adopt a child
subject to the rules framed.
 Yaqoob Laway v. Gulla (2005) JKJ
 A petition was filled by a person for declaration that he was the adopted child of the
couple and entitled to a share in the property of the couple.
 Defendants submitted that they are Muslims and Muslim law do not allow for
adoption- hence no right in property.
 Court held that even if there is no law for adoption by Muslim, if certain local
customs allowed for adoption, then adoption may be allowed- however it does not
mean a right in property is created.
 The court also held that if a person can show that a property was gifted or given to
him by way of deed or document that an interest in the property has been created-
it will so be.
 The court held that no adoption is created and even if customary law in taken into
account, in the absence of a document to prove that the property had been gifted to
the claimant- not entitled to a share in the property.
 A.S. Sailaja v Principal Kurnool Medical, AIR 1986-
 In this case, a girl had applied for an entrance exam for a medical course and she
filled details of her biological father.
 In the application for taking admission in the college, she filled the name of her
adopted father and also stated that she was claiming social status that she had
previously not claimed it.
 She had also filed a Xerox of an adoption deed and a certificate of caste belonging to
her adopted father.
  She was given provisional admission as a backward class however, later she was
asked for her adoption and caste certificates and she was also told that in the
absence of the same, her admission will be struck off.
 The court held that since the adoption was valid, the girl had every right same as the
natural child of the adopted father.
 However, with regard to the caste, it could not pass to her since she had not faced
any difficulty in her upbringing or faced any disability.
 She was entitled to rights under personal laws however, she could not get the
benefits of caste reservations.
 Laxmi Kant Panndey v. UOI-
 In this case, a letter by an advocate was treated as Public Interest wherein it was
stated that voluntary and social organizations and agencies were indulging in
malpractices by offering services of inter-country adoption.
 The children were ending up in poor condition being forced into beggary and other
horrendous things.
 The SC took judicial notice and directions were issues.
 It was directed that every application of adoption by a foreigner must be sponsored
by a child/social welfare agency of the foreigner’s country. The Biological parent
must never get to know who is adopting the child. All details of the family, assets,
liabilities, recent photos, medical history etc must be submitted along with the
application.
 It was further directed that the government would intimate the embassy in that
country to keep a watch on the welfare of the child and safeguard against any ill
treatment.

Guardianship:

 The Hindu law of guardianship of minor children has been codified and reformed by the
Hindu Minority and Guardianship Act, 1956.
 Section 4 (a) defines a minor as a person who has not attained the age of 18 years.
 Section 4 (b) defines a person having the care of the person of a minor or of his property or
of both his person and property. Guardians includes:
 Natural guardian
 Guardian appointed by the will of the minor’s father or mother
 a guardian appointed or declared by a court,
 a person empowered to act as such by or under any enactment relating to any Court
of wards.
 Section 6: Natural guardians of a Hindu minor:
 The natural guardians of a Hindu minor; in respect of the minor's person as well as in
respect of the minor’s property (excluding his or her undivided interest in joint family
property), are:
ᴏ (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;
ᴏ (b) in the case of an illegitimate boy or an illegitimate unmarried girl—the
mother, and after her, the father
ᴏ (c) in the case of a married girl—the husband:
 ᴏ Provided that no person shall be entitled to act as the natural guardian of a
minor under the provisions of this section:
 (a) if he has ceased to be a Hindu
 (b) if he has completely and finally renounced the world
ᴏ Explanation—In this section, the expressions “father” and “mother” do not
include a step-father and a step-mother
 In Gita Hariharan v. Reserve Bank of India and Vandana Shiva v. Jayanta
Bandhopadhaya (1999)
ᴏ SC held that under certain circumstances, even when the father is alive,
mother can act as a natural guardian. The term 'after' used in Section 6(a)
has been interpreted as 'in absence of' instead 'after the life-time”.
 Section 8: powers of Natural guardians:
 (1) The natural guardian of a Hindu minor has power, subject to the provisions of this
section, to do all acts which are necessary or reasonable and proper for the benefit
of the minor or for the realization, protection or benefit of the minor's estate; but
the guardian can in no case bind the minor by a personal covenant.
 (2) The natural guardian shall not, without the previous permission of the court:
ᴏ (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any
part of the immovable property of the minor
ᴏ (b) lease any part of such property for a term exceeding five years or for a
term extending more than one year beyond the date on which the minor
will attain majority.
 (3) Any disposal of immovable property by a natural guardian, in contravention of
sub-section (1) or sub-section (2), is voidable at the instance of the minor or any
person claiming under him.
 (4) No court shall grant permission to the natural guardian to do any of the acts
mentioned in subsection (2) except in case of necessity or for an evident advantage
to the minor.
 Section 9: Testamentary guardians and their powers.
 (1) A Hindu father entitled to act as the natural guardian of his minor legitimate
children may, by will appoint a guardian for any of them in respect of the minor’s
person or in respect of the minor’s property (other than the undivided interest
referred to in section 12) or in respect of both.
 (2) An appointment made under sub-section (1) shall have no effect if the father
predeceases the mother, but shall revive if the mother dies without appointing, by
will, any person as guardian.
 (3) A Hindu widow entitled to act as the natural guardian of her minor legitimate
children, and a Hindu mother entitled to act as the natural guardian of her minor
legitimate children by reason of the fact that the father has become disentitled to
act as such, may, by will, appoint a guardian for any of them in respect of the
minor’s person or in respect of the minor’s property (other than the undivided
interest referred to in section 12) or in respect of both.
 (4) A Hindu mother entitled to act as the natural guardian of her minor illegitimate
children may; by will, appoint a guardian for any of them in respect of the minor’s
person or in respect of the minor's property or in respect of both
 (5) The guardian so appointed by will has the right to act as the minor’s guardian
after the death of the minor’s father or mother, as the case may be, and to exercise
 all the rights of a natural guardian under this Act to such extent and subject to such
restrictions, if any, as are specified in this Act and in the will
 (6) The right of the guardian so appointed by will shall, where the minor is a girl,
cease on her marriage
 Section 10: Incapacity of minor to act as guardian of property—A minor shall be incompetent
to act as guardian of the property of any minor.
 Section 11: De facto guardian not to deal with minor’s property— no person shall be
entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of
his or her being the de facto guardian of the minor.
 Section 12: No guardian can be appointed for the minor’s undivided interest in the
property.
 Section 13: Court while appointing the guardian should give maximum consideration to the
welfare of the minor

Muslim law:

 Under Muslim law, there are three types of guardians:

 Natural
 Testamentary
 Appointed by court.
 Natural guardian:
 In both the Sunnis and the Shias, the father is recognized as guardian which is
equivalent to natural guardian and the mother in all schools of Muslim law is not
recognized as a guardian, natural or otherwise, even after the death of the father.
 The father's right of guardianship exists even when the mother, or any other female,
is entitled to the custody of the minor.
 The father has the right to control the education and religion of minor children, and
their upbringing and their movement. So long as the father is alive, he is the sole
and supreme guardian of his minor children.
 The father's right of guardianship extends only over his minor legitimate children.
He is not entitled to guardianship or to custody of his minor illegitimate children.
 In Muslim law, the mother is not a natural guardian even of her minor illegitimate
children, but she is entitled to their custody.
 Among the Sunnis, the father is the only natural guardian of the minor children.
After the death of the father, the guardianship passes on to the executor.
 Among the Shias, after the father, the guardianship belongs to the grandfather, even
if the father has appointed an executor, the executor of the father becomes the
guardian only in the absence of the grandfather. No other person can be natural
guardian, not even the brother.
 Testamentary guardian:
 Among the Sunnis, the father has full power of making a testamentary
appointment of guardian. In the absence of the father and his executor, the
grandfather has the power of appointing a testamentary guardian.
 Among the Shias, the father's appointment of testamentary guardian is valid only if
the grandfather is not alive.
 The grandfather, too, has the power of appointing a -testamentary guardian.
 No other person has any such power.
 Among both the Shias and the Sunnis, the mother has no power of appointing a
testamentary guardian of her children.
  There are only 2 instances in which the mother can appoint a testamentary guardian
of her property of her minor children:
 Firstly, when she has been appointed a general executrix by the will of the
child's father, she can appoint an executor by her will; and
 secondly, she can appoint an executor in respect of her own property.
which will devolve after her death on her children.
 The mother can be appointed as a testamentary guardian or executrix by the
father, or by the grandfather, whenever he can exercise this power.
 Among the Sunnis, the appointment of a non-Muslim mother as testamentary
guardian is valid, but among the Shias such an appointment is not valid, as they
hold the view that a non-Muslim cannot be a guardian of the person as well as of the
property of a minor.
 Muslim law does not lay down any specific formalities for the appointment of
testamentary guardians. Appointment may be made in writing or orally.
 In every case the intention to appoint a testamentary guardian must be clear and
unequivocal.
 The testator must have the capacity to make the will at the time when it was
executed. This means that he should be major and of sound mind.
 Guardian appointed by court:
 On the failure of the natural guardians and testamentary guardians, the kazi was
entrusted with the power of appointment of guardian of a Muslim minor.
 The matter is governed by the Guardians and Wards Act, 1890.
 This Act applies to the appointment of guardians of all minors belonging to any
community.
 The High Courts also have inherent powers of appointment of guardians, though the
power is exercised very sparingly.
 Under the Guardians and Wards Act, 1890, the power of appointing, or declaring any
person as guardian is conferred on the District Court.
 The District Court may appoint or declare any person as guardian of a minor child's
person as well as property whenever it considers it necessary- for the welfare of the
minor, taking into consideration the age, sex, wishes of the child as well 'as the
wishes of the parents and the personal law of the minor.

Guardianship under Christian law:

 The Guardians and Wards Act, 1890, which resides in the secular realm also, may be resorted
to.
 The relevant provisions are reproduced herein: -
 According to section 17 of the above-said Act, the matters of the case should be
considered by the court in appointing guardian. “ (1) In appointing or declaring the
guardian of a minor, the Court shall, subject to the provisions of this section, be
guided by what, consistently with the law to which the minor is subject, appears in
the circumstances to be for the welfare of the minor.
 (2) In considering what will be the welfare of the minor, the Court shall have regard
to the age, sex and religion of the minor, the character and capacity of the
proposed guardian and his nearness of kin to the minor, the wishes, if any, of the
deceased parent, and any existing or previous relations of the proposed guardian
with the minor or his property.
  (3) If the minor is old enough to form an intelligent preference, the Court may
consider that preference.
 Section 19: Prohibits the Court from appointing guardians in certain cases:
 Nothing in this Chapter shall authorize the Court to appoint or declare a guardian of
the property of a minor, whose property is under the superintendence of a Court of
Wards (CoW), or to appoint or declare a guardian of the person-
 (a) Of a minor who is a married female and whose husband is not, in the
opinion of the Court, unfit to be guardian of her person. Or
 (b) Of a minor whose father is living and is not, in the opinion of the Court,
unfit to be guardian of the person of the minor, or
 (c) Of a minor whose property is under the superintendence of a Court of
Wards competent to appoint a guardian of the person of the minor
 S.24. Duties of guardian of the person:
 A guardian of the person of a ward is charged with the custody of the ward and must
look to his support, health and education, and such other matters as the law to
which the ward is subject requires.

In Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, the Court held

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. In dealing with a matter concerning a minor, the Court
has a special responsibility and it is the duty of the Court to consider the welfare of the minor and to
protect the minor's interest. In considering the question of custody of a minor, the Court has to be
guided by the only consideration of the welfare of the minor.