This article is written by Anusha Misra, from NALSAR University of Law. This article looks into the change in custody cases resolution over the years.

Introduction

The legislation governing child custody and guardianship is inextricably interwoven. Guardianship is a broad term that relates to an adult’s rights and powers in respect to a minor’s person and property, whereas custody is a more specific term that refers to the minor’s upbringing and day-to-day care and control. In any Indian family law, secular or religious, the term “custody” is not defined.

Statutory law

(i) Guardians and Wards Act, 1890: This is secular legislation that governs guardianship and custody issues for all children inside India’s borders, regardless of religion.

(ii) Hindu Law: It should be emphasised that the two acts discussed under “Hindu Law” apply to anyone who professes to be a Hindu, Buddhist, Jaina, or Sikh.

1. Classical Hindu law did not contain concepts dealing with guardianship and custody of children, hence the Hindu Minority and Guardianship Act of 1956 was enacted. The Hindu Minority and Guardianship Act, however, includes various regulations concerning guardianship and custody of young Hindu children in modern statutory Hindu law.
2. Section 26 of the Hindu Marriage Act, 1955, allows courts to make interim orders in any process under the Act relating to the custody, maintenance, and education of minor children, in accordance with their wishes. The Section also allows courts to revoke, suspend, or vary interim orders that have already been issued.

(iii) Islamic Law: According to Islamic law, the father is the natural guardian, although custody remains with the mother until the son or daughter reaches puberty. The notion of Hizanat states that, of all people, the mother is best fitted to have custody of her children until they reach a specific age, both during and after the marriage. A mother’s right to custody cannot be taken away unless she is disqualified due to apostasy or wrongdoing, and her care is deemed to be detrimental to the child’s welfare.

(iv) In any process under these Acts, courts are authorised to issue interim orders for custody, maintenance, and education of minor children under Section 49 of the Parsi Marriage and Divorce Act, 1936, and Section 41 of the Divorce Act, 1869.

(v) Marriages registered under the Special Marriage Act of 1954: This Act establishes a special type of marriage that can be used by anybody in India, as well as all Indian nationals living abroad, regardless of the faith professed by either party to the marriage. Couples who register their marriage under the Special Marriage Act can use Section 38 of the Act to determine child custody. Section 38 enables the district court to issue interim orders and make such provisions in the decree as it deems just and proper with respect to the care, maintenance, and education of minor children, in accordance with their wishes whenever practicable, while the case is pending.

The paramount consideration

The “welfare of the child” is the most important factor to consider while making a judgment about custody or other matters involving a child. This was held in the case of Somnath Das v. Sheoli Hati (2019). The court’s primary priority is neither the father’s nor the mother’s wellbeing. This was held in the case of Saraswatibai Shripad Ved v. Shripad Vasanji Ved (1940).

Principles pertaining  to the custody of a child

The court must issue a custody order for minor children, either under the terms of the Guardians and Wards Act, 1890, or the Hindu Minority and Guardianship Act, 1956, with the minor’s best interests and welfare in mind. It is not the better right of either parent that would necessitate adjudication for determining custody eligibility. In the case of Gaytri Bajaj v. Jiten Bhalla, (2012) it was held that the child’s desire, as well as the availability of a conducive and appropriate environment for proper upbringing, as well as the ability and means of the parent in question to care for the child, are some of the relevant factors that the court must consider when deciding on custody of a minor. In the case of Gaytri Bajaj v. Jiten Bhalla, it was held that children are not mere chattels nor are they toys for their parents. 

In the case of Mausami Moitra Ganguli v. Jayanti Ganguli,(2008) it was held that better financial resources of either parent or their affection for the child may be crucial elements, but they cannot be the sole deciding factor in the child’s custody. It is in this context that the court is charged with exercising its judicial discretion prudently in light of all relevant facts and circumstances, with the child’s welfare as the priority. The term “welfare” in Section 13 of the Hindu Minority and Guardianship Act, 1956, must be used literally and in the broadest meaning possible. The child’s moral and ethical well-being, as well as its bodily well-being, must be considered by the court.

Even if the provisions of special statutes governing the rights of parents or guardians are taken into account, there is nothing that can prevent the court from using its parens patriae jurisdiction in cases like Gaurav Nagpal v. Sumedha Nagpal (2008). The father is the natural guardian of a minor son under Section 6 of the Hindu Minority and Guardianship Act, 1956. In the case of Surindar Kaur Sandhu v. Harbax Singh Sandhu,(1984) however, it was determined that the provision cannot take precedence over the paramount concern of what is best for the minor’s welfare.

In the case of Ruchi Majoo v. Sanjeev Majoo,(2011) the court concluded that even an interim custody order in favour of one parent should not protect the minor from the parental touch and influence of the other parent, which is critical for the minor’s healthy development and personality development.

The principles established in proceedings under the Guardians and Wards Act, 1890, are equally applicable in dealing with child custody under Section 26 of the Hindu Marriage Act, 1955, because two things are common in both situations: the first is orders relating to custody of a growing child, and the second is the paramount consideration of the child’s welfare. Such factors are never static, and they can’t be crammed into a box. As established in the case of Vikram Vir Vohra v. Shalini Bhalla (2010), each case must be handled on the basis of its unique facts. It is the “positive test” that such custody would be in the minor’s best interests that is relevant, not the “negative test” that the father is not “unfit” or disqualified to have custody of his son/daughter. It is on this basis that the court should exercise its power to grant or refuse custody of a minor to the father, mother, or any other guardian.This was held in the case of Nil Ratan Kundu v. Abhijit Kundu (2008).

Twin objectives of the “welfare principle”

The wellbeing principle is intended to achieve two goals. First and foremost, it is to ensure that the child develops and grows in the greatest possible setting. According to the child’s optimal growth and development, the best interest of the child has been placed at the forefront of family/custody disputes and takes precedence over other considerations. This right of the child is also based on individual dignity. 

The second argument for the welfare principle is in the public interest, which is served by children’s optimal growth. In the case of Vivek Singh v. Romani Singh (2017), it was decided that child-centric human rights law has evolved and is founded on the premise that the proper development of children, who are the nation’s future, is in the public interest.

Considerations governing grant of custody

When it comes to custody matters, a court is not bound by statutes, rigorous rules of evidence or procedure, or precedents. A child’s usual comfort, contentment, health, education, intellectual growth, and advantageous surroundings must all be considered by the court. Moral and ethical ideals, however, must take precedence over physical luxuries. They are just as vital, if not more so, as fundamental and indispensable considerations. If the minor is old enough to develop an intellectual choice or judgment, the court must take that into account, though the court should make the final decision as to what is best for the minor’s welfare, as decided in Nil Ratan Kundu v. Abhijit Kundu.

In the case of Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari,(2019) it was laid down that, the welfare of the child shall include various factors like ethical upbringing, economic well being of the guardian, child’s ordinary comfort, contentment, health, education, etc. The court established several considerations in the case of Lahari Sakhamuri v. Sobhan Kodali (2019).

The courts must consider several important elements when determining the children’s and parents’ welfare, including – 

1. Maturity and judgment,
2. Mental stability,
3. Ability to offer access to schools,
4. Moral character, 
5. Ability to give continued involvement in the community, and
6. Financial sufficiency and last but not least the factors involving a relationship with the child, as opposed to characteristics of the parent as an individual.

Issues common to all child custody disputes 

Issues common to all child custody disputes are –

• Attachment continuity and quality,
• Preference,
• Parental alienation,
• Children’s special needs,
• Education,
• Gender issues,
• Sibling relationships,
• Parents’ physical and mental health,
• Parents’ work schedules,
• Parents’ finances,
• Parenting and discipline styles, 
• Dispute resolution,
• Social support networks,
• Ethnic and cultural difficulties, 
• Ethics and values and religion.

Though the prevalent legal criteria are the “best interests of the child,” the Courts have also established the “least detrimental alternative” as an alternative judicial presumption in the case of J. Selvan v. N. Punidha (2009).

Nature of custody orders

Throughout examining the sort of care and compassion that a child requires in the growing stages of his or her life, the Court must keep in mind that it is dealing with a particularly sensitive topic when it comes to child custody. As a result, custody orders are always deemed interlocutory orders, and custody rulings cannot be declared inflexible and final due to the nature of such processes. They can be changed and molded to meet the needs of the youngster.

Guardianship or custody orders are never permanent or definitive, and they can be challenged at any moment by anybody who is genuinely concerned about the minor child’s welfare.

Estoppel is not applicable to custody orders

Even when based on consent, orders relating to wards’ custody are subject to change by the court if the wards’ welfare requires it. 

Where to file an application for custody of a child

The Guardians and Wards Act of 1890 has a specific clause about the court’s power to hear a claim for the custody of a minor. The “ordinary residence” of the juvenile is the sole criterion for determining the court’s jurisdiction under Section 9. Whether a minor is normally resident in a certain location is essentially a question of purpose, which is, therefore, a matter of fact. It may be a mixed matter of law and fact at best, but it can never be a pure question of law that can be decided without looking into the factual parts of the dispute until the jurisdictional facts are admitted.

Interim custody/ temporary custody

The Court can make orders for temporary custody and protection of the minor’s person or property under Section 12 of the Guardians and Wards Act, 1890. Because Section 12 permits the court to issue any order it considers necessary, the court must be led by the welfare of the children when deciding on interim custody. The same considerations that must be made while deciding on guardianship will also apply to temporary custody. In situations of custody, the rigorous rules controlling an interim injunction do not apply.

Examination of the child is important

It is vital and desirable for the court to examine the youngster in order to determine his wishes regarding who he wishes to remain with. Apart from the statutory provision in Section 17 of the Guardians and Wards Act, 1890, such examination also assists the court in fulfilling onerous duties, exercising discretionary authority, and settling the delicate question of custody.

Constructive custody

The term “custody” in Section 25 of the Guardians and Wards Act of 1890 should be interpreted to cover both actual and constructive custody. Although it was acknowledged that this interpretation could only be reached by stretching the language, it was thought to be justified because it would serve to carry out the Legislature’s goal in enacting the Act.

Hindu Minority and Guardianship Act is in addition to the Guardian and Wards Act

When the Hindu Minority and Guardianship Act, 1956, does not offer a specific remedy, Section 2 and Section 5(b) of the Act applies the provisions of the Guardians and Wards Act. The Hindu Minority and Guardianship Act, 1956, is separate from the Guardians and Wards Act, according to Section 2.

Natural guardian

In certain instances, Section 6 of the Hindu Minority and Guardianship Act, 1956, specifies who is the natural guardian of a minor’s person. It names the natural guardian as: 

• The father in the event of a male or an unmarried girl, and after him, the mother:
• Provided, however, that custody of a minor under the age of five years is generally with the mother.
• The mother, and then the father, in the case of an illegitimate boy or illegitimate unmarried girl.
• The husband in the case of a married woman.

It should be noted, however, that the terms “father” and “mother” in this Section do not include a stepfather or stepmother.

The Prohibition of Child Marriage Act, 2006, effectively repeals Section 6(c) of the Hindu Minority and Guardianship Act. As a result, as established in the case of V. Sivakumar v. the State of T.N. (2015), an adult male who marries a female child in violation of Section 3 of the Prohibition of Child Marriage Act does not become the natural guardian of the female child. Natural guardianship of an adopted son who is a juvenile passes to the adoptive father on adoption and thereafter to the adoptive mother, according to Section 7 of the Hindu Minority and Guardianship Act, 1956.

Custody of a Hindu child aged below 5 years

According to the Hindu Minority and Guardianship Act, custody of an infant or a young child should be given to the mother unless the father discloses compelling reasons that indicate and foreshadow the likelihood of the child’s welfare and interests being undermined or jeopardised if the mother retains custody.

However, it is immediately clarified that Section 6(a) or any other provision, including those in the Guardians and Wards Act, does not preclude the mother from having custody of the child when the latter has reached the age of five years.

Custody of children born outside wedlock (illegitimate child)

The general opinion is that the unwed mother has primary custody and guardianship rights over her children and that the father does not have an equal status just because he fathered the child.

The subtle difference between “custody” and “guardianship”

The appointment of a guardian and minors’ custody are two separate issues. The terms “custody” and “guardianship” have a small difference between them. The term “custody” refers to having physical control over someone or something. The idea of guardianship is similar to that of trusteeship. In relation to the individual to whom he has been appointed, a guardian is a trustee. A guardian’s job is more difficult than that of a custodian. Custody could be for a limited time and for a specific reason.

In the facts and circumstances of each case, the issue of guardianship can be separate and different from the issue of custody. 

Writ of habeas corpus for restoration of custody

The writ of habeas corpus can be used in child custody cases if it can be proven that the detention of a minor kid by a parent or others was illegal and without legal authorisation.

The Hindu Minority and Guardianship Act, or the Guardians and Wards Act, as the case may be, is the only common law remedy in child custody cases. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in the exercise of extraordinary jurisdiction on a petition for habeas corpus.

Effect of remarriage on custody

While either parent’s second marriage is a factor to consider when assigning custodial rights, it does not disqualify them from having custody of their children.

Visitation rights

A visitation order is a court order that specifies when a non-custodial parent can see his or her children. Despite the fact that the non-custodial parent is accountable for the child’s care during visits, visitation differs from custody in that the non-custodial parent and child do not live together as a family unit. In a nutshell, visitation rights are not the same as custody or temporary custody orders. In essence, they allow the parent who does not have interim custody to meet the child without taking them from the other parent’s custody.

Parental Alienation Syndrome

As a result of the separation of parents, often the child falls in the middle of a contest of loyalty, which psychologists term as Parental Alienation Syndrome. It has at least two psychological destructive effects:

1. For starters, it places the child squarely in the middle of a loyalty struggle that he or she cannot reasonably win. The youngster is invited to choose which parent he or she prefers. Whatever option the child chooses, he or she will almost certainly feel extremely guilty and confused. This is because, in the vast majority of instances, what the child wants and needs is to maintain a relationship with each parent that is as free of tension as possible.
2. Second, the youngster must change his or her perspective on reality. One parent is portrayed as the sole source of all issues and as a person who possesses no redeeming qualities. Both of these claims are the result of one parent’s reality distortions. In the case of Vivek Singh v. Romani Singh, a negative attitude displayed by a parent is a substantial element weighing against him/her when the court considers granting custody of the kid.

Child abduction and repatriation of the parents’ separation

Inter-country dispute

If a significant amount of time has passed between the removal of a child from the native country by any parent and the actions taken by the writ petitioner parent to repatriate the child, the court would prefer an in-depth investigation into all relevant circumstances affecting the child. Only if there is a clear indication that the kid may suffer imminent and irreversible harm is quick and irreversible restoration required. Unless the continuation of the child in the nation to which it has been removed is damaging, it should not be dislocated and extricated from the environment and setting to which it has adapted for its well-being on the basis of general perspectives, perceptions, and practicalities.

Regardless of whether a High Court conducts a cursory or in-depth investigation, the child’s welfare must take precedence over all other considerations, and a pre-existing foreign court’s order must be considered as one of the criteria in determining custody. The applicability of doctrines/principles such as “comity of courts,” “intimate contact,” and “closest concern” would be determined by a variety of facts and circumstances, with the child’s welfare taking precedence. 

The Supreme Court has consistently held that if a kid is brought into India, the Indian courts may conduct either a brief inquiry or an in-depth investigation into the issue of custody. In the case of a summary inquiry, the court may deem it fit to order the return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open to the court to decline the relief of return of the child to the country from where they were moved irrespective of a pre-existing order of return of the child by a foreign court.

Parens patriae jurisdiction of Indian courts

In instances involving custody of small children, the role of a court exercising its parens patriae jurisdiction is all the more onerous. The fact that a foreign court has taken a particular position on any aspect of the minor’s welfare is insufficient to prevent an independent assessment of the issue by the courts in this country. In such situations, objectivity, rather than complete surrender, is the motto. But, as the case of Ruchi Majoo v. Sanjeev Majoo, (2011) demonstrated, it’s one thing to treat a foreign ruling as conclusive and another to treat it as a factor or consideration in reaching a final verdict.

Forum convenience and comity of courts

The concept of forum convenience has no place in wardship jurisdiction, according to established legal precedent. The principle of judicial comity cannot take precedence or be given greater weight when deciding on custody or the return of a child to his or her native country.

Case of non-convention countries

The Hague Convention of 1980 has yet to be signed by India. The Indian courts, in whose jurisdiction the minor has been brought, must “ordinarily” assess the case on its merits, with the child’s welfare as a top priority, while taking the pre-existing order of the foreign court, if any, into account as one of the criteria and not becoming focused on it. While examining the issue, Indian courts have the discretion to deny the relief of return of a child brought within their jurisdiction if they believe the child is now settled in its new environment, if it would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation, or if the child is mature and objects to its return. 

Questions to be considered by the court

A habeas corpus petition requires the High Court to determine whether the child is in the lawful or unlawful custody of another person at the outset. The High Court will then evaluate whether an order issued by a foreign court instructing the person in charge of the minor to produce the child before it renders the custody of the minor unlawful. Without a doubt, simply because such an order is issued by a foreign court, the minor’s custody does not become illegal in and of itself.

Conclusion

Divorce and custody fights can quickly devolve, and it’s heartbreaking to see the innocent child become the ultimate victim of the parents’ legal and psychological war. The tumultuous custody agreement is frequently a reflection of the parents’ interests rather than the child’s. In a child custody battle, the question is what will happen to the child, yet the youngster is usually not a true participant in the process. While the best-interests principle demands that the primary focus is on the kid’s best interests, the youngster rarely defines those interests or has representation in the traditional sense. The psychological equilibrium of a child is profoundly affected by marital discord, and the way parents maintain strong ties with their children has an impact on their adjustment to change. Focusing on children’s rights in cases of parental dispute is a proactive step toward understanding this unique circumstance, which necessitates a unique articulation of children’s rights.

References 

• https://www.scconline.com/blog/post/2019/11/25/custody-of-children/
• https://uk.practicallaw.thomsonreuters.com/Cosi/SignOn?redirectTo=%2f6-581-5985%3ftransitionType%3dDefault%26contextData%3d(sc.Default)%26firstPage%3dtrue

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