This article is co-authored by Akshay Anurag of NUSRL, Ranchi and Soumya Ranjan Barwa of BVP, Pune. The article is a discussion on all you need to know about child custody rights.

– The children are not mere chattels nor are they mere playthings for their parents.

Introduction

Marriage, as a social institution, has a significant role to play in the societal setup.”Marriage acts as an outlet for sexual needs and also regulates it. It also prevents individuals from becoming slave to his/her desires. Marriage is a social need because through marriage, families are established and the families are the fundamental entity of our society. It also helps in procreation of children which are the essentials of the family.

‘Hedaya’ has recognized marriage as a legal process by which the several process and procreation and legitimating of children between man and women is perfectly lawful and valid. However, in the recent era, The institution of marriage is collapsing. Personal difference between the spouses is increasing, also coupled with various other factors. Legal frameworks were very true speculation of such situations, therefore the concept of Divorce was well introduced. Divorce not only adversely affects the spouses but it also influences the life the children. One of the prime concern for a long pendency of divorce cases in India is, with whom the custody of the child will rest.

“Though nobility and self-denial coupled with tolerance mark the greatest features of Indian womanhood in the past and the cry for equality and equal status being at a very low stake, with the passage of time and change of social structure the same is however no longer dormant but presently quite loud.”Mothers and fathers both have a prominent role to play in supporting the growth and development of their children. Generally, the wish of the minor child and the mother is highly ignored while determining the custody of the child. This is because the earning ability of father. In India, it is well common that father earns more than a mother. But this cannot be the sole ground to entitle the father to take undue advantages. This should not entitle him to get the custody of the child in the event of a divorce. However, the Judiciary have been vigilant in this regard and this situation is changing in recent times. Now the court while awarding Child custody to the parent considers the best interests of the child.[1]“

Earlier only male Hindus had the right to adopt or to give in adoption. But now it has been recognised that even Hindu women can also adopt or give in adoption. In the case of Githa Hariharan v. RBI[2], the court has very liberally interpreted the word Guardian and court has arrived to the conclusion that the Hindu women are very much entitled to adopt or take the custody of the child irrespective of that the father is alive.

This paper deals with the motivation of the parents to adopt a child and various aspects relating to adoption under the Hindu law and the Muslim law.

Child Custody And Protective Laws

Child custody is the legal terminology which is most commonly used to describe the legal and practical nexus between parents and his or her child. This includes various rights some of them are, right of the parent to make decisions for the child, and the parent’s duty to care and nurture for the child. Not only the common legal frameworks have recognised such principles rather the religion-based distinction of the personal laws is also evident and accepted fact.

Child custody can refer to where your children will live after divorce (physical custody), or who has the legal right to make decisions about their upbringing (legal custody).

Personal laws in addition to the secular laws have been zealously guarding and fiercely protecting as well as justified by the various religious communities.[3]

In re Mc Grath[4] Lindley, L.J., observed, “The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word `welfare’ must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well being. Nor can the ties of affection be disregarded.“

Types Of Child Custody Arrangements

Physical Custody

“Physical care is the privilege to have your kids live with you after a separation. The privilege might be shared by the two guardians in a joint physical care game plan or conceded to just a single parent in a sole physical care game plan.[5]“

Joint physical guardianship

“Courts, by and large, want to grant joint physical guardianship to ensure the kids will keep up contact with the two guardians. In a few expresses, this is the default determination, and may require a differing guardian to demonstrate why their youngsters ought not invest energy with the two guardians.

Joint physical guardianship expects guardians to impart time to their kids. It is not a 50-50 split, however, in the event that the guardians can’t achieve an assention, the courts may force a timetable. Normal game plans incorporate substituting weeks, months, as well as occasions at each parent’s home.

Joint physical guardianship empowers the two guardians to be fundamental parts of their youngsters’ lives. Research underpins that in low-clash divorces, kids passage preferred in joint guardianship courses of action over sole authority. In any case, for high-clash divorces with debating guardians, joint physical authority may trap youngsters amidst a passionate clash zone “

Legal Custody

“Legitimate authority is your entitlement to settle on choices about your kid’s childhood, for example, training, restorative care, and religious guideline. Like physical guardianship, legitimate care might be mutually shared between the two guardians or exclusively vested in one parent.[6] By and large in many states, the two guardians keep on having joint lawful authority after separation, which means the two guardians have parallel rights to settle on kid raising choices. Nonetheless, courts may grant sole lawful authority to one parent under some uncommon conditions. A parent with sole legitimate guardianship has the one-sided lawful ideal to settle on youngster raising choices.”

Child Custody Under Personal Laws

Under Hindu Personal Law

For Hindus, the law governing custody of a child is the Hindu Marriage Act. For Hindus, the parent law governing custody of child is the Hindu Marriage Act, 1955. In addition to this Hindu Minority and Guardianship Act, 1956 also takes care of this issue. Judiciary has manifested its activism basically in three ways in the matters related to custody of the child born out of wedlock among Hindus and they are[7] –

1. Imposition: The right of custody from time to time. While choosing the factor with respect to who will have the care of the child, child’s desire is frequently dealt with wherever conceivable. Court now and again intervene with the custodial privileges of the youngsters. The Court investigates the issue with most extreme care. Answer for the inquiry in the matter of who will have the care of the youngster after separation or legal division depends on the factor in the matter of what will be most helpful for the child and the court comes to the conclusion that,
2. Alteration: The right of custody from time to time. If care with the father is more appreciable and encouraging then the father will have the care. If under mother’s authority child’s future is more secure then care will go to the mother or any other relatives with whom the interest of the child seems to be more secure. Here court is vigilant about the interests of the child and court alters its pronouncement in due course of time.
3. Revocation: This scenario arises after the court has passed the order of child custody. On certain circumstances, if the finding of the court subsequent to going off the request of child guardianship, court may revoke the care and allow it to the inverse party. For instance, when a mother was given care of her child and she didn’t play out her obligations towards the child legitimately and in an efficient manner, the court denied the authority and offered it to child’s father.”

Hindu Minority and Guardianship Act

The Dharmashastras have never dealt with the law of guardianship. During the British regime, the law of guardianship was mainly developed by the courts based on the rules of equity. It came to be established that the father is the natural guardian of the children and after his death, mother is the natural guardian of the children and none else can be the natural guardian of minor children. The concept of guardianship has changed from paternal power to the idea of protection in modern times and the Hindu Minority and Guardianship Act, 1956 very well identified the necessity and codified the laws regarding minority and guardianship with the welfare of the child at the core. Custodial matters of a child are decided according to the natural guardian of the child“. Natural guardian is defined in Section 6 of HMG Act which defines only three natural guardians:

• For a legitimate boy or a girl, the father, and after father, the mother, provided that the custody of a child less than 5 yrs of age will be with the mother.
• For an illegitimate boy or a girl, the mother, and after mother, the father.
• For a married woman, the husband.

Also, In divorce situations, the parent with custody is considered the natural guardian. This act also gives the will of the child paramount consideration. After analysing various judicial interpretations it can be concluded that the courts, Before deciding the issue as to whether the custody should be given to the mother or the father or partially to one and partially to the other should –

• Take into account the wishes of the child concerned, and assess the psychological impact, if any, on the change in custody, after obtaining the opinion of a child psychiatrist or a child welfare worker.[8]
• Also, In the case where the mother was living with a stranger, custody is awarded to the father and not the mother.

“There is an assumption that a minor’s parents would do their best to promote their child welfare and if necessary, would relinquish their own advantage and joy for the sake of their children. This assumption emerges in view of the common and natural affection anticipated from the guardians for their children. There is no division between the wellness of the father to be depended with the care and welfare of his minor child. The father’s wellness must be viewed and decided in terms of welfare of his minor youngsters with regards to all the applicable conditions. If the guardianship of the father can’t advance the child’s welfare equal or superior as compared to the authority of the mother then he can’t assert a right to their care only in light of the fact that there is no imperfection in his own character and he has the emotional attachment for his kids which each ordinary parent has. However, the father has been assumed by the statute as well as by the society that he is better fitted to care for the children, as he is the major or sole earner and leader of the family. Yet another duty has been casted upon the Court to analyse each situation as to the welfare of the kids.”

As in the case of J.V. Gajre v. Pathankhan and Ors.[9] while affirming the view of English courts, the Apex court has reiterated that, to deal with the issue of custody “The Courts have to consider, the whole of the circumstances of the case, the position of the parent, the position of the child, the age of the child, the religion of the child so far as it can be said to have any religion , and the happiness of the child. Prima facie it would not be for the welfare of the child to be taken away from its natural parent and given over to other people who have not that natural relation to it. Every wise man would say that, generally speaking, the best place for a child is with its parent. If a child is brought up, as one may say from its mother’s lap in one form of religion, it would not, I should say be for its happiness and welfare that a stranger should take it away in order to alter its religious views. Again, it cannot be merely because the parent is poor and the person who seeks to have the possession of the child as against the parent is rich, that, without regard to any other consideration, to the natural rights and feelings of the parent, or the feelings and views that have been introduced into the heart and mind of the child, the child ought not to be taken away from its parent merely because its pecuniary position will be thereby bettered. No wise man would entertain such suggestions as these.”

Under Muslim Personal Law

“The source of law of guardianship and custody are the certain verses in the Koran and a few ahadis“. In addition to this In all schools of both the Sunnis and the Shias, the father is perceived as the guardian which term extends till his death. In contrast to this, mother in all schools of Muslim law isn’t considered as the natural guardian, even after the demise of the father means that women are excluded from taking the custody. The father’s privilege of guardianship exists notwithstanding when the mother, or some other female, is qualified for the authority of the minor. Also when the father is alive, he is the sole and incomparable custodian of his minor children.[10] However, The father’s exclusive right of guardianship is only extended to the minor and legitimate childe but not to the illegitimate child. Muslim law is quite liberal towards women as the mother is although not qualified to the natural guardian yet she is qualified for his/her custody.[11]

Among the Sunnis, the father is the sole custodian of the minor youngsters. After the demise of the father, the custody passes on to the agent. Shias, have departed from such view as after the father, the guardianship has a place with the grandfather, regardless of appointment of the agent by the father. No other individual can be regular custodian, not even the Childs sibling.

Testamentary Guardian/Custodian

“Among the Sunnis, the father has full authority of making a testamentary arrangement of custodian. Without the father and his agent, the grandfather has the authority of delegating a testamentary custodian. Among the Shias, the father’s arrangement of testamentary custodian will come into force only in case of absence of grandfather. No other individual has any such power. Among both the Shias and the Sunnis, the mother has no authority of delegating a testamentary custodian of her children. It is just in two cases in which the mother can delegate a testamentary custody of her property of her minor child, First being, when she herself has been authorised by the will of the child’s father, she can name an agent by her will; and in second case, she can name an agent in regard of her own property which will decay after her passing on her kids.”

Among the Sunnis, the arrangement of a non-Muslim mother as testamentary custodian is substantial, however among the Shias such an arrangement is not legitimate, as they hold the view that a non-Muslim can’t be a custodian of the individual and in addition to the property of a minor. The Shias additionally take a similar view. It gives the idea that when two people are selected as custodian, and one of them is excluded, the other can go about as guardian. Also, a man who is famously and well known as bad character, can’t be named as Custodian.

Muslim law does not set out a particular established rules for the appointment of testamentary custodian. Infact, such Arrangement might be made in orally. However, in every situation the authority to delegate a testamentary custodian should be clear and equivocal. The agent of the testamentary custodian is assigned differently by Muslim lawgivers, showing his position and powers. He is ordinarily called, wali or watchman.

Custody Under Secular Law

The Guardians and Wards Act, 1890 was a law to supersede all other laws regarding the same. It became the only non-religious universal law regarding the custody of a child. This is a secular law which can be resorted by any religion but the recourse of this law is mainly taken by the Christians. Other religions can also in addition to their personal law can take the recourse of the same. Section 17 of the act imposes a liability on the courts for appointing a guardian. The provision is well quoted below,

The authority to name any individual as custodian is given on the District Court. The District Court may choose or proclaim any individual as the custodian of a minor as an individual and property at whatever point it thinks of it as essential for the welfare of the minor, contemplating the age, sex, wishes of the minor too.

Summing Up

Basically, the paper first tried to define, who is the natural guardian of the minor which is defined with various Personal as well as the secular laws. Further, an analysis has also been done regarding the hierarchy of two natural guardians, i.e. the father and the mother. Also, the judicial activism has also been noticed. The judiciary has always tried to break the social barrier by providing equal opportunity to the mother too, irrespective of the earning capacity of the mother. As the mother is the preferred custodial parent when the child is less than five years old.

In addition to the above points, courts have always tried not to blindly follow the statues rather they have taken the pragmatic approach. The wish of child is the paramount consideration and also the future of child too. The primary issue dealt in the paper is the interest and the custody of the child after the parents have abandoned. Although it is accepted that the spouses have to undergo mental distress but if we closely analyse the fact, the child is also the ultimate sufferer. Being mentally incapable to understand the situation, it is difficult for them to react in the situation it is difficult to safeguard their future. So to protect the interest of the children various legislations have been very well enacted. Every religion has given due importance to this issue. However, As a stark reality, this issue has not addressed, the children are still the not safeguarded completely and also it is well known that women are given less representation in the society when it comes to custody and guardianship of children after divorce.

References

[1]Child Custody & Guardianship: Indian Scenario Compared to the West, Available at : http://www.legalservicesindia.com/article/article/child-custody-&-guardianship-204-1.html( Accessed on Oct, 26, 2017).

[2] 1999 (2) SCC 228.

[3] Mulla, Principles of Hindu Law, (New Delhi, Butterworths India,2001)PP-233.

[4] (1893, 1 Ch.143).

[5] Available at: http://www.divorcenet.com/resources/divorce/divorce-and-children/legal-and-physical-custody-children. (Accessed on Oct, 24, 2017).

[6] Available at: http://family.findlaw.com/child-custody/legal-custody.html (Accessed on Oct, 26, 2017).

[7] Available at: Legal Custody of Child Born after Divorce or Seperation of Parents in India, Available at : https://blog.ipleaders.in/legal-custody-child/(Accessed on Oct, 26, 2017).

[8] Mamta v. Ashok Jagannath Bharuka, (2005) 12 SCC 452.

[9] 1970 (2) SCC 717.

[10] Imambandi v. Mutsaddi, (1918) 45 Cal 887.

[11] Gohar Begum v. Suggi, (1960) 1 SCR 597.