Child custody

February 4, 2021

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This article is written by Anupam Bhaduri and further updated by Aadrika Malhotra. It talks about the process of obtaining child custody in India in detail. The article also talks about the rights of both the parents in the custody of their minor child and the types of child custody under Indian laws.

Table of Contents

Introduction

The custody of a child after the separation of the parents is of the utmost consideration in India. Often, movies and books have quoted the amount of trauma that a child has to go through to see the bitter process of their parents separating. The issue of the custody of a child arises after the completion of the divorce or the judicial separation and is one of the most important issues on which the court must decide.

Custody of a child refers to the right given to a parent by the court to look after the child (if the child is less than 18 years of age). The parent in whom the custodial right is vested is supposed to look after the financial security and maintenance of the child with regard to proper lifestyle, healthcare, emotional, physical and medical development. The other parent is provided with the only right to access and meet the child. The family courts, while debating on the issue of custody, base their decision on the best interests of the child in question.

What is child custody

The simple meaning of the term ‘custody’ is to look after someone or something and have immediate control over them. In terms of children, custody simply means that a person is bestowed with the legal obligation to take care of them and provide for them in a reasonable manner. The person who has the child’s custody also gets the right to make legal decisions for the child and cover their expenses. Normally, both parents have an inherent right to joint custody of their child. Although, if the parents get separated, the child custody either goes to one or remains with both the parents, as and when the courts decide upon it. Custody does not mean that if one parent has it, the other does not get a say in their child’s life. It simply means that one parent has the larger share of decision-making power for the child. The child can still live or spend time with the other parent.

The parent or person with custody of the child is called the legal custodian. This person or parent is appointed by the court to take care of a minor child, an incapacitated person, or somebody’s personal assets. The legal custodian has the right to make decisions for the child, such as:

The child’s expenses,
Medical care,
Educational facilities,
Religion, and
Overall life.

Child custody is one of the most important aspects of a divorce for both parents and children. It has a direct impact on their lives and can be very difficult to decide in certain cases. In India, child custody is decided in each case differently, and there is no uniformity in how the courts determine whether a parent deserves custody or not. Usually, the courts prefer that the parents agree to joint custody since it would be much better for the upbringing of the child. Regardless, it is not always possible for the parents to come to a unanimous decision, and therefore, one or the other ends up getting the sole custody of the child. In determining which parent gets custody, the court takes into consideration solely the benefits and interests of the child. The court considers the child’s legal expenses and his/her overall physical and mental well-being when giving custody to the parents. Therefore, custody arrangements are made by careful and meticulous deliberation only, thereby making them lengthy procedures.

Importance of proper child custody

Child custody is a very emotional and legally complex issue. Both parents would want to win custody of the child, but they might not be able to provide for their children with the best care after divorce. There are several issues, such as the division of parental property, adequate and healthy child care, visitation rights, decision-making rights, alimony, and overall child safety, that make parents fight against each other in court for custody. This is the reason why Indian law ensures that both parents have certain rights over their child.

Child custody simply ensures the physical presence of either one of the parents in the child’s life at all times. Irrespective of a divorce or separation, both parents will be the guardian of the minor child. The only difference is that the custodial parent becomes the primary caretaker of the child, and the other parent retains his/her right to meet the child. In some cases, the court might find that both of the parents would not be able to take proper care of the child. Therefore, in such circumstances, the other relatives or grandparents of the child are given custody. If the whole family of the child is not competent to take care of him/her, then the court will give the custody of the child to a third party or foster care.

A proper child custody agreement and settlement is therefore very crucial for the upbringing of the child to:

Define the roles and responsibilities of both the parents towards the child,
Lay down in detail the schedules for visitation of the child,
Allow both the parties to exercise their parental rights over the child,
Protect the visitation rights of the non-custodial parent,
Provide the custodial parent with the support to get proper child care from the non-custodial parent through the appropriate laws,
Designate one of the parents responsible for making major life decisions for the child.

Factors courts take into consideration for the welfare of a child

The courts have time and again stated in several cases that the welfare of the child is of paramount consideration. In the case of Shazia Aman Khan and Anr. vs. The State of Orissa and Others (2024), the Supreme court held that lower courts have to take into consideration the welfare of the child over the supremacy of personal laws when deciding cases for child custody. The courts sometimes take into consideration the child’s wishes over personal laws and who the child wants to live with while giving custody. If neither of the parents are capable of taking care of their child, the courts will deny custody to them.

In case a child is less than five years of age, the mother will always be given the child’s custody except for some grave circumstances like child abuse as per Section 6(a) of the Hindu Minority And Guardianship Act, 1956. Fathers usually get the custody of older boys, whereas mothers get the custody of older girls. In most cases, the courts favour the choice of a child who is above a certain years of age to decide who he/she would like to live with as per Section 6.

Therefore, the following factors contribute to the decision made by the courts for child custody:

Stable and healthy environment to stay at the parent’s home.
Strength of the parent-child relationship.
Parent’s willingness to stay with the child.
Child’s willingness to stay with the parent.
Physical, emotional, and mental well-being of the child.
Any evidence of domestic verbal, mental, or physical abuse on the child.
Ethical upbringing and safety of the child.
Any wishes of the deceased parent with respect to the child.
In the case of siblings, the court will grant custody to keep them together with one parent.
The ability of the parent to grant a good education to the child.
The financial status of the custodial parent.

Denial of child custody

There are several circumstances where the courts can deny child custody to either of the parents. In denying child custody, the court takes into consideration the personality of the parent and his/her living conditions.

A parent can be ousted from custody by the court if he/she is accused of inflicting domestic violence on the other spouse or the child.
Substance abuse like alcohol or drugs is taken very seriously when it comes to child custody. Any parent who has a dangerous level of addiction to drugs or alcohol can be eliminated from child custody immediately.
Any parent who neglects or abandons the child will also be ousted from custody of the children.
If the parent is physically unfit to keep the child, the court will not consider him/her for custody as well.
The parents cannot disregard the court’s orders for the custody of their child. If any parent does so by violating the visitation rule or custody, the court will revoke his/her custody. A similar instance can be seen in the case of Geeta Vohra @ Geeta Chopra vs Nitin Chopra (2020), where the court stated that not complying with the court’s orders for custody can lead to sanctions levied on the parents.
Parents have to maintain stable living conditions for the child, and if a parent fails to do so, the court will deny custody to that parent.

Inherent right over minors after divorce

A person who is under the age of 18 is considered a minor in family law. In the case of a minor child, both parents have equal rights over the child after divorce. Here, equal right refers to the right to the custody of the child. However, the Family court gets the last say in this regard. The central piece of legislation having provisions to address the issue is the Guardians and Wards Act, 1890, which is primarily secular in nature. In addition to this Act, the Hindu Minority and Guardianship Act, 1956, is also the primary piece of legislation for child custody under Hindu law. This Act is supposed to be read with respect to the Guardians and Wards Act, 1890 as mentioned under Section 2 of it. However, the provisions of this Act are often in stark contrast to the provisions of the statutes dealing with personal laws. The oversight of the Family court is important in this regard because while pronouncing its verdict, the court aims to strike a balance between the two. The custody of the child is given to any one parent at a time based on the previous factors mentioned above. The other parent is given the right to access to stay in touch. The right to access is a potent right in the hands of the other parent because it makes sure that the parent with the custodial right actually takes care of the child. The conditions of the visiting rights are, however, set by the court. The provision of access rights ensures that the child gets the love and affection of both parents. The Act also provides other regulations and redressal mechanisms for other child custodial issues. The issue of religion does not affect the rights guaranteed under this Act, and it is also read along with the other personal laws governing child custody.

Types of child custody

Child custody is given by courts on several grounds and several arrangements. These custody arrangements have to be very well-drafted so as to meet the requirements of the child adequately. Until the court pronounces a final order based on the above-stipulated conditions, the parent who is vested with the custody of the child ends up with the physical custody as well as the legal custody of the child. Any other form of custody or any other arrangement will be made clear by the court and the changes thus made are informed to both the parents. A petition for child custody can be filed by either of the parents in the court. Section 10 of the Guardians and Wards Act, 1890, states that as per the Code of Civil Procedure, 1908, the petition must include all particulars about the children and the grounds for submitting the petition in court. The parent has to submit their IDs, evidence of residence, the certificate of birth of the children, and the details of the other parent.

Legal custody

Legal custody means having a legal responsibility for the child and making major legal decisions about the child. It gives a parent the right to make long-term decisions about their child. These decisions include several aspects of the child’s life, like his/her education, healthcare, religion, and other important aspects of the child’s upbringing. The court determines which parent to give the legal custody to by putting the best interests of the child ahead and deciding which parent is more competent to make legal decisions about the child. Although, having legal custody of a child does not mean that he/she will live with the legal custodial parent. The parent who has legal custody will get the right to make all the important legal decisions about their child until he/she turns the age of 18.

Joint legal custody

A joint legal custody arrangement gives both parents the authority to make legal decisions for their child. The child will reside with only one parent primarily, but both parents can make major life decisions for the child.

Sole legal custody

Oftentimes, parents come to a decision to get joint legal custody of their child but are not able to decide upon these sensitive topics. Therefore, the court grants one parent the physical custody of the child, and the other parent gets the child’s legal custody. In most cases, legal custody is given to both parents, but in situations where the parents cannot cooperate, the court usually chooses a sole custodian to give the legal custody of the child.

Physical custody

Physical custody is the physical responsibility of the parent to provide a home for their child. It gives a parent the right to keep their child with him/her most of the time. The process of physical custody ensures that a child grows up in a safe and sound environment with the other parent also being an active part of his/her life.

For example, if one parent has the legal custody rights of the child and the other has the physical custody, the parent with whom the child is living at the time will get to make important decisions. If the child is in urgent need of medical care, the parent with physical custody of the child can make decisions about the child’s treatment.

Sole physical custody

Physical custody can be given solely to one parent, but it is very rare that only one parent retains the sole custody of the child at all times. However, in circumstances where the parent is unfit to keep the child, the court does grant one parent permanent sole physical custody. In most situations, parents share the physical custody of their child and decide upon which parent has to keep the child with them primarily.

Visitation rights

The other parent who does not have physical custody will be allotted visitation rights as decided by the court. The duration is often decided in terms of days, weeks, or months. courts mostly try to follow this method of custody because it ensures that the child is treated properly and is not neglected. If the physical custody schedules are not robust, the parent, the child residing with the most, will be considered as his/her primary residence. Mostly in physical custody, one parent is given the right to keep the child, and the other parent gets visitation rights to meet the child at regular intervals.

Joint physical custody

Generally, the courts do not want to sever the parent-child relationship and try to ensure that both parents have the right to make decisions about their child. Regardless of what physical custody arrangement the court gives, the parents’ duties will eventually overlap. Therefore, joint physical custody gives both parents the right to keep their child in their physical presence. Whichever parent has the child at a specific point of time in their custody, they will get to make decisions about the child.

Joint custody

Indian courts believe that joint custody is the most favourable outcome for a minor. It ensures that both parents take care of the child in turns while keeping him/her in their custody weekly or monthly. The process of joint custody, thus, ensures that both parents get to be in their child’s lives and the child gets to live with both parents. The custody arrangement may also be for longer durations, such as the child residing for six months with the mother and the next six months with the father. A mutual agreement is signed between both the parents at the time of their separation for joint custody of their child. In this process, the parents also share the decision-making rights of their child with each other. The parents would not have to stay at the same place to care of their child after divorce under joint custody. They can keep their rights over their child as per the terms of the contract of the custody arrangement. Section 26 of the Hindu Marriage Act, 1955 and Section 38 of the Special Marriage Act, 1954 talks about the concept of joint custody.

Third-party custody

Third-party custody is where a third party who is not a biological parent of the child gets the child custody. It is a type of non-parental custody where the custody of the child is given to the child’s relative or grandparents and not the parents. The court may also give the child’s custody to another third party, like foster care, if it deems that the whole family of the child is unfit to take care of him/her. A third-party guardian will only be appointed by the court if it deems that neither the mother nor the father is capable of keeping the child in a safe environment. The wishes of the child will also be taken into consideration when granting third-party custody. If a child has mostly lived with his/her grandparents, then custody can directly be given to the grandparents as well.

Special guardianship

It is a type of third-party custody given by the court that allows the child to live with a third party who is not the parent of the child. The person with whom the child lives in this kind of arrangement becomes his/ her special guardian. The special guardian will have all the legal rights over the child until they want to provide that care and support for the child. However, if, for instance, the special guardian does not want to continue with this arrangement, the court will terminate the guardian’s legal rights over the child immediately.

Sole custody

Sole custody is the type of custody where the child is handed over to one single parent, and the other parent has no influence over the child’s life. This situation usually arises when the court finds that the other parent is not supportive, is abusive, is incapable, or is neglectful towards his/her child. The other parent will also not be able to visit the child at all. The decision to give sole custody to one parent is made very meticulously by the court while considering the other parent’s history with his/her mental status and substance usage, if any. The sole parent will have all the rights for the upbringing of the child without having the need to consult with the other parent at all.

Alternative/ divided custody

It is a type of sole custody where the child solely lives with one parent for some time and then solely with the other parent. The parents take turns having the sole custody of the child as scheduled by the court. The non-custodial parent, during the time of the other parent’s sole custody, will have visitation rights over the child. For instance, the mother may have sole custody in the odd months of the year, and the father may have sole custody of the child in the even months of the year.

Split custody

Split custody is majorly seen in cases where a couple has multiple children. If a couple has more than one child, then the custody of the children will be divided and alternated among the couple. One parent will get the custody of some children, and the other parent will get the custody of the other children. The court may order the children to live permanently with their allotted parents, or it may also order the parents to rotate their custodial duties among their children. Split custody is generally not favoured by most courts in India because it separates siblings from each other. Although, this type of custody may prove to be very beneficial in some circumstances. The custody is agreed upon by a joint agreement between the parents.

Bird’s nest custody

This is the rarest type of custody given in India. In this type of custodial arrangement, the child continues to reside in the family home after the divorce of the parents. The parents have to live with their child in the family home itself alternatively as decided by the court. When one parent is living with a child in the family home, the other parent lives elsewhere. The parents are the ones who move in and out of the house, not the child. Bird’s nest custody is mostly given when the courts cannot come to an agreement to provide any other form of custody to the parents.

This custody arrangement is called so because baby birds usually stay in their nests until they are able to feed themselves. A bird nest, in the context of child custody, is the permanent place of residence of the child. The parents of the child have to visit the child at their marital home itself. There is an agreement to decide upon a schedule that is set by the court to make sure that the child is not neglected. The parents come into a shared agreement and take the burden of the divorce rather than putting it on the child.

Interim custody/ temporary custody

Due to technicalities, divorce and child custody battles stretch out for years, and during this time, the children get dragged into their parents’ brawl. Either of the parents can file for interim custody in that period to ensure the welfare of the child. Section 12 of the Guardians and Wards Act, 1890 empowers the court to pass orders with temporary or partial custody, keeping in mind the person and property of the child. The court can pass any order necessary for the welfare of the child under the provision and can grant interim custody to anyone and not only the parents. Interim custody is also treated as the same as giving guardianship of the child to someone. Interim and permanent custody can go to different parents of the child depending on the outcomes of the case. If the court grants interim custody of a child to one parent and after the case finally finishes, the parent is no longer eligible to keep the child, the permanent custody will go to the other parent or a third party. Furthermore, Section 26 of the Hindu Marriage Act, 1955 empowers the court to pass interim orders for matters relating to child custody from time to time. This includes all aspects of the child’s life and maintenance, like his/her healthcare, education, etc.

Child custody without divorce

Parents can file for child custody without their divorce, as well. Such a situation usually occurs when one parent wants a divorce, and the other does not. Both parents can file for judicial separation and attach an application for child custody with it. A parent can also file a separate petition for child custody. In most custody applications filed separately, the mother remains the child’s natural guardian. Once the father has established his legal paternity for the child, the courts presume the custody to be a joint custody arrangement between the parents. The rest of the custody arrangement and visitation rights are decided by the court taking the best interests of the child into consideration.

People eligible to fight for child custody

The custody of a child can always be claimed by a mother or a father after divorce. If both of them or either of them are not in the picture due to unforeseeable circumstances, the maternal and paternal grandparents would be the first to be eligible to fight for child custody. In the absence of all of the above, the relatives of the child can also file for custody out of compassion and care for the child until he/she turns 18. The Family courts have, in several cases, also appointed a third person to take care of the child. Section 17 of the Guardian and Wards Act, 1890 emphasises the welfare of the child, and the Family courts try their best to fulfil their duties regarding that. The opinion of the child also matters as much as his/her welfare does when the courts decide the eligibility of people to fight for child custody. Similarly, Section 13 of the Hindu Minority and Guardianship Act, 1956, states that a person cannot be the guardian of a child if the court does not deem them fit for the welfare of the child.

In most cases, if the parents are willing to compromise and look away from their differences, the Family courts grant the child custody to both of them. It is only in extreme circumstances, such as when the parents are not able to reconcile their differences for their child, that the courts grant custody to either one of them or to a third party.

Priority claim

As per Section 6 of the Hindu Minority and Guardianship Act, 1956, the custody of a child below five years of age is generally given to a mother. In cases of older boys, the fathers are generally given custody while the mother is awarded the custody of older girls. During the process of determining a child’s custody, the child’s views are also taken into consideration if the child is old enough to form an intelligent preference under Section 17(3) of the Guardians and Wards Act, 1890. Since the main criterion is the well-being of the child, mothers who have been abusive, negligent, irresponsible, or could not provide for the welfare of the child in the past are not given custody rights after separation.

Step-mother child custody

Usually, custody of children under the age of 5 years is given by default to the mother under Section 6 of the Hindu Minority and Guardianship Act, 1956. However, there might be circumstances where the mother would not be financially stable enough to provide for the child. Giving the custody rights to the mother in such a situation would not be in the best interest of the child. On the other hand, if the father has already remarried and has kids of his own, it would not be favourable to give the custody of the child completely to the father. The High court, in the case of Smt. Mamoni Pal (Biswas) vs Sri Samir Pal (2022) stated that a mother cannot be discarded as the child’s guardian only because the father is in a more stable financial condition. If the father has kids from his second marriage, the step-mother’s affection will naturally go to her own kids. Therefore, the mother of the child is best suited to get custody of the child, and the father would have to bear the child’s maintenance expenses.

Child custody laws

The Guardians and Wards Act, 1890 is the general law for deciding child custody regardless of religion in India. Divorce is a serious matter in India, and therefore, there are different religious sentiments related to it as well. It is dealt with differently in different religions practised in the country. Each religion has its own personal laws, and there are corresponding legislations applicable to them. Child custody is also dealt with and is also practised according to different religions in India.

Guardians And Wards Act, 1890

Ordinary place of jurisdiction for child custody

Taken together with the personal laws of the country, this Act is read in a bid to determine what sort of child custody will be provided in every case. Basically, the determination of which court has jurisdiction to entertain a child custody case for foreign children in India is governed by what is termed as ‘ordinary residence’ under the Act. Section 9 of the Act defines what can be considered as the ordinary place of residence for a child. The section does not talk about the temporary place of living of a child, even if that child has resided at that temporary residence for some time. The jurisdiction of a court is limited to only the district or place where a minor usually resides most of the time.

Part V of the Act spells out the jurisdiction of the court in respect of custody cases based on Section 19 of the Act. The Section points out certain circumstances where the court cannot appoint a guardian for a minor’s property. The court cannot appoint a guardian if a female minor who is married has her spouse looking after her. A minor whose property is under the superintendence of a court of Wards cannot be decided upon by any other court. The Section also states that the court cannot appoint another guardian if an unmarried female can be taken care of by her parents. There is a huge gender bias prevalent in Hindu laws regarding child custody. Section 19 of the unamended Guardians and Wards Act, 1890 was discriminatory against mothers as they clearly claimed that the father is a natural guardian of the child without giving any consideration to the mother. The National Commission for Women amended Section 19 of the Guardians And Wards Act. They updated it and brought the mother’s child custody at par with the father’s.

If the application to the court is made with respect to the minor concerned, the court that is nearest to the minor’s permanent residence and that has jurisdiction for it under the law for that specific area will be the one to make the final decision on the custody of the child. Now, regarding the concept of ‘ordinary residence,’ it is further explained that it does not mean ‘habitual residence.’ The meaning of ordinary residence is taken from English law. As per English laws, the ordinary residence of a person is the place where he ordinarily resides in his day-to-day life. A minor’s ordinary residence, in this case, is the place where he/she resides mostly with his/her family. A child’s ordinary residence changes in accordance with the change in the parent’s residence as well.

In the case of Ruchi Majoo vs Sanjeev Majoo (2011), the Supreme Court amplified the concept of the ordinary place of residence in the case of a minor child. The court explained the difference between ‘sufficient’ and ‘insufficient’ residence and detailed it. The court previously decided that ‘resides’ means much more than a casual stay at a particular place. The court, therefore, in the present case, held that residency means the residence where a person declares his permanent stay. The permanent residence or temporary residence of a person will always depend upon a case-to-case basis, and the court would have to interpret the minor’s custody accordingly as well. The fundamental difference between a sufficient residence and insufficient residence would completely depend upon the permanent stay at that particular place.

In the case of Kuldip Nayar vs Union of India (2006), the court held that permanent residence is transitory, and therefore, a child’s permanent residence cannot be determined merely by placing them somewhere else.

The other important concepts that the Indian courts take into consideration in determining jurisdiction on child custody are two Latin maxims, namely ‘parens patriae’ and ‘habeas corpus’. Of the two principles, the first grants the state authority to act in a given situation to discover that a child has been neglected. Where situations like the above arise, the courts have to come up with decisions to protect the child in an emergency. Moreover, in such a circumstance, it may also take jurisdiction for the child custody by the court to which the child is physically present rather than the original place where the child may have lived.

The other one, Habeas Corpus, is a special writ remedy that can be applied in child custody cases. These proceedings are not initiated to examine the legality of child custody. It is a medium through which the people associated with the child can discuss the custody arrangements in court. The writ is prerogative and gives remedies to people where the ordinary remedies given are not fruitful in a particular case. This writ can be used in cases where a minor is detained by a person who does not have child custody. The Supreme court also elaborated on this matter in its judgement for the case of Rajeshwari Chandrashekhar Ganesh vs State of Tamil Nadu (2021). This case deliberated on the issue whether a writ of habeas corpus can be filed for child custody matters. The appellants in the case were the grandparents of the child and were given the child’s custody. They appealed against the High court’s decision in the Supreme court, contending that the writ of habeas corpus shall not be used in child custody cases. There are other remedies present under the Hindu Marriage Act, 1955 and the Hindu Minority and Guardianship Act, 1956. The Supreme court affirmed the High court’s decision and stated that the writ is maintainable in cases where a minor child is detained by a parent or is illegally confined against the law.

Examination of the child

The court needs to examine the minor thoroughly before making a decision for custody or guardianship. Child custody is a crucial question, and the courts need to scrutinise every detail in order to make the decisions about the child. Section 17 of the Guardians and Wards Act, 1890 lists certain factors that the courts need to take into consideration before making decisions for child custody. It emphasises that the court must scrutinise the matter of consideration when deciding whether a guardian is chosen for the welfare of the child. Since minors cannot take care of themselves, the court has the power to make decisions for them. Although, the welfare of the minor should be taken in its widest sense and meaning. Sub-Section 4 of the provision states that the court cannot make a decision that the child opposes. The welfare of the child typically includes factors like the age of the child (under 18), safety, nutrition, basic amenities that he/she would need, ethics, financial needs, properties that he/she would be entitled to, how the guardian behaves, or how attached the child is with the guardian. If these factors are not taken into consideration, the courts cannot possibly make a decision for the welfare of the child.

Special Marriage Act, 1954

This Act concerns marriage, divorce of parents, children’s rights and child custody where the parents belong to different religions. As per Section 38 of the Act, District court is empowered to make interim orders and pass decrees for care and maintenance of a child. Frequently, the applications for the maintenance of the child must be disposed of within a duration of sixty days from the date of service of notice.

Hindu laws

Hindu Marriage Act, 1955

This Act is only applicable to children whose parents follow the Hindu religion and have been married or divorced under the Hindu religion itself. Other religions, like Buddhism and Sikhism, also come under Hinduism. Section 26 of the Act is related to the maintenance and education of minor children. The courts are empowered to pass amendments regarding the support of the child and custody of a minor at any time. courts also have the ability to review or overturn a pending decree within 60 days without any form of notification. The court can also revoke or suspend any other previous orders that the court had made with respect to the guardianship.

Hindu Minority And Guardianship Act, 1956

This Act only governs child custody and guardianship for children whose parents belong to the Hindu religion. It does not allow custody to anyone else other than biological parents. Section 6 of the Act states that minors under the age of 5 will mandatorily reside with their mothers. courts have to keep in mind the welfare of the child as per Sections 13 and 17 of the Hindu Minority and Guardianship Act, 1956. They can also give the custody of the minor to the father under circumstances where the mother is unable to keep the child. Under Hindu law, the father is the ultimate guardian and has the natural right to keep the children. The father gets the custody of minor legitimate children under the age of 18 and above the age of 5. The mother will get them only after the father dies or if the child is illegitimate. The courts may also grant third-party custody where the parents cannot be granted guardianship. The grandparents of the child are awarded custody under the Act when there are circumstances where a parent cannot be given custody.

Even the mother of a child of tender age can be denied custody if she is not able to provide for the child in a proper manner. In such a case, the custody and the visitation rights can go to the father itself. However, it is the discretion of the court to modify the rights as it may deem fit. A noteworthy case of this nature can be explained while citing the case of Vikram Vohra vs Shalini Bhalla (2010). In this case, the mother emigrated to Australia along with the child. According to the prior decision, the father then had visitation rights which were then changed accordingly. Since the mother was now residing in Australia, the child’s residence was changed as well. The father would also have to make specific arrangements in this case to meet the child. So, the court altered the schedule of visitations of the father.

Muslim laws

According to Muslim laws, even though there is the right of the father to see his children, child custody belongs solely to the mother. Child custody under muslim laws is determined by the muslim personal laws, Guardianship and Wards Act, 1890, and Special Marriage Act, 1954. As under Section 38 of the Special Marriage Act, 1954, the custody of the children shall be determined by the district court. The District courts can affirm or refuse decisions in matters of interim orders as well as concerning the guardianship, education and keeping of minor children.

Hizanat

According to Shia law, the mother has the right of custody of minor male till the age of 2 years and minor females till nine years of age. Under Muslim law, the guardianship of minors is called ‘hizanat’. Hizanat is basically the right of raising the children up to majority given to the mothers inherently. The age of puberty is also considered the age of majority under Muslim law for child custody. According to Radd-ul-Muhatar, this right of the mother will extend to her inherently until and unless she is an apostate.

According to Hizanat rules, the mother has authority and right for the minor boy up to 7 years and of the minor female up to the time she attains her puberty or majority age according to the Hanafi Law. Under Shia laws, the mother has this right until the minor boy attains the age of 2. The mother cannot be denied this right unless a decision was made to do so, on grounds of her being unfit. In the case that the mother divorces the father and later gets married again; then custody goes back to the father’s side. The consent of the child will be looked into by the court depending on its merit. If the child is tutored or coaxed, the consent he gives loses its validity. Specifically, the court might take a position not to grant custody of the child if the parent is unable to promote the child’s best interests. In this case, the grandfather gets the custodial rights of the children when both parents are unable to take care of the children. In the Maliki school of muslim law, the grandmother or the mother’s grandmother, the mother’s own sister or the one related from the maternal line, father’s own sister, paternal aunt, maternal aunt, full blooded sister, or a consanguine sister gets the rights of custody in absence of the mother.

Father’s rights of hizanat

The father can also gain custody of the child, especially when the mother and the other females in the child’s life are unavailable. There is a possibility that testamentary guardians may be appointed by the courts if the father desires to do so. When the father is unavailable, the nearest related paternal grandfather, brother’s son, brother to the father, sibling, or father’s brother’s son holds the custody rights of the child.

Applicability of Shariat in custody matters

As per Section 4 of the Guardians and Wards Act, 1890, a minor is a person who has not attained majority under the provisions of the Indian Majority Act, 1875. As per Section 3 of the Act, every person domiciled in India has to attain the age of 18 to attain the age of majority. It is a set precedent that a minor is a person who is below the age of 18, but muslim law considers children who reach the age of puberty to have attained majority. Shariat (muslim law) in this case might not be valid on child custody principle based on this. Section 6 of the Guardians and Wards Act, 1890 states that personal laws applicable for child custody can be overshadowed by the Guardians and Wards Act, 1890 if both the laws are in contradiction to each other. However, Section 17 of the Guardians and Wards Act also states that personal laws have to be scrutinised to give child custody. The judicature in the case of Akhtar Begum vs Jamshed Munir (1978), clarified this matter. The court held that the minor’s personal laws have to be considered while deciding an application for child custody. If this mandate is not taken into consideration, the court will be acting irregularly. The court further stated that as per Section 2 of the Indian Majority Act, 1875, the Act’s provisions do not override matters related to marriage, dower, divorce, and adoption. Therefore, the Act cannot be taken into consideration while ascertaining the age of a minor and the personal laws will be given a higher concentration.

Loss of custody rights

A female who has custody rights under Muslim laws is called the hazina, and the male is called the hazin. The courts consider several factors before denying custody to a hazina or hazin based on the welfare of the child. As per the Shia law, a person who has ceased to be a Muslim will not be allowed to keep the child. The court can also take away the rights of a hazina who marries a person not related to the child in degrees of prohibited relationship. The rights of hizanat are dependent on the welfare of the child. Although, a hazina or hazin cannot be denied custody if they do not have sufficient funds to maintain the child solely. The mother and the father cannot remove the child from the matrimonial home as well. A hazin who is profligate and unsound mind cannot maintain child custody. Profligates are people who have an utterly immoral character in terms of the major public view.

Guardianship

Under Muslim law, guardianship and custody are given separately to the parents. Guardianship is a broader term that includes the overall maintenance of a child, whereas custody of a child under Muslim laws is limited to only the day-to-day well-being of a child. Guardianship includes making decisions about the child’s healthcare, education, property, and overall welfare. Guardianship is of three types:

Guardianship of person (Wilayah al-nafs): It involves making decisions about the care and upbringing of a minor, such as his/her welfare, guidance, healthcare, and education. The father is usually the natural guardian of the children, followed by the paternal grandfather and the paternal uncles.
Guardianship of property (Wilayah al-mal): This type of guardianship involves managing a child’s estates and property. The guardian has to fulfil the child’s financial needs and administer his/her property until he/she reaches the age of majority.
Guardianship of marriage (Wilayah al-nikah): This type of guardianship arrangement is associated with a marriage agreement between a minor and the guardian. The former guardians of the minor female have the capacity to give the consent of marriage to the next guardian of the minor female.

The people who have the guardianship of the minors are called legal guardians or Wilayat-e-mal. There are four types of legal guardians:

Natural/legal guardian

The natural/legal guardian can monitor and supervise the activities of a minor. In all schools of Muslim law, the father is considered as the legal guardian of all the minors. As long as the father is alive, he is the sole guardian of his children. A mother is not considered as the legal guardian of her children but is given their custody. In the absence of the father, the father’s executor will be the legal guardian of the child appointed by the father. However, in Shia law, the guardianship of the children passes to the grandfather even if the father has named an executor for the children.

Testamentary guardians

A testamentary guardian is appointed for a minor through a will. The father can appoint a testamentary guardian for his children in the absence of a paternal grandfather. Mothers do not have the right to appoint testamentary guardians except for in two cases. A mother can appoint the testamentary guardian if she is the general executrix by the will of the children’s father. If the mother has properties that will devolve to her own children, she can still appoint an executor.

Guardians appointed by court

A court can appoint a guardian for the minor or his/her property if the legal or testamentary guardians are not present. This appointment is made by the Guardians and Wards Act, 1890. These guardians are called statutory guardians. The court will take into consideration the welfare of the minor and appoint a guardian for him/her.

De facto guardians

A de facto guardian is a guardian who themselves assume the guardianship of the child. It is an unauthorised person who has custody of the child. Such a person has no authority to be a guardian of the child but has taken such authority under certain circumstances. In the case of Md. Amin v. Vakil Ahmad (1952), the minor child’s brother, entered into an agreement on behalf of the minor child. The court held that such an agreement is valid until the de facto guardian transfers the rights of the minor’s property.

Christian laws

The custody of children in Christian laws is governed by the Divorce Act, 1869. Section 41 of the Act lays down the essentials of child custody. It states that the court must make interim orders for the maintenance of the child from time to time during the suit of separation of the parents. Section 42 of the Act gives the court the authority to pass orders for the child’s maintenance and welfare, like healthcare and education, after a decree of judicial separation.

Parsi laws

Parsi laws give child custody to parents under the Guardians And Wards Act, 1890 based on the child’s best interests. The provisions in regard to the custody of children are defined under Section 49 of the Parsi Marriage and Divorce Act of 1936. Here, the court can make orders of paternity and of placement of the child pending trial and must discharge such order within sixty days. Section 31 of the Act relates to the suits for dissolution for the absence of the parents from the child’s life. In this case, the parents can be taken out of the custody rights by the court if they have not been in the child’s life for a long time.

Rights of child custody

A parent is given several rights over their child when custody of that child is awarded to them.

If awarded physical custody, the parent has the right to make day-to-day decisions about the child’s life and live with him/her.
If awarded legal custody, the parent has the right to make all legal decisions about the child’s life and other major decisions like education and healthcare.
The parents with any type of custody over the child also get the right to make basic decisions about the child’s education and monitor his or her educational or extra curricular activities as well.
Custodial parents also have the right to make basic healthcare decisions about the child, such as the types of medication and amenities the child needs.
A custody arrangement also gives a parent the right to make decisions about the child’s religion.
The court can also give a particular parent the right to relocate to another place or visit a particular place with the child.
Legal custody also gives either of the parents the right to maintain the finances of the child.
Parents will also get the right to protect their child by any means when given the child’s custody.

Rights of custodial mothers

Mothers are given child custody by the courts primarily because they are considered as the children’s guardians. Usually, mothers get custody of younger children because mothers are the most capable of raising children. These mothers have the rights and responsibilities as a custodial parent as well. The courts make sure that the mothers have all the rights to make decisions in their child’s best interest. If mothers have physical custody of their children and do not have a stable income, the fathers have an obligation to pay all the financial support to the mother for the children. The courts can order any type of financial assistance under Section 125 of the Code of Criminal Procedure, 1973. Custodial mothers have certain rights over their child’s life:

Providing for their basic needs and amenities.
Supporting their emotional and physical development.
Providing maternal care, especially for infants.
Fulfilling their primary caregiver role, especially for children under five years of age.

Rights of custodial fathers

The courts have always favoured mothers over fathers as primary caregivers for their children. Recent cases have pointed out that the courts have become flexible in giving custody to fathers as well. Fathers can claim custody of their children and rights in the following ways:

The court may grant the custody of the child to the father if the mother voluntarily surrenders her custody over the child.
The father may be granted custody if the mother is unwell or is not able to take care of the child under any circumstances.
If the mother is an alcoholic or drug addict, the court may grant custody to the father as well.
The father may get custody if the mother’s financial incapacity is affecting the well-being of the child.
The father may get custody of the children if the mother is a convict or has been imprisoned for some crime.

What if the father’s name is not on the birth certificate

Fathers also have the right to fight for custody if their name is not listed on the child’s birth certificate. Normally, courts give the fathers who are listed on their child’s birth certificate the custody rights of the child. Although, if the father listed on the child’s birth certificate is not the child’s biological father, the court can still grant him the child’s custody. The father who gets custody will also have to pay child support and maintenance as well. If the father’s name is not on the child’s birth certificate, the court may not grant any type of custody to him. The court will direct the father to take a paternity test to give him custody rights for the child. If the paternity test portrays that the father is the biological father of the child, the court can grant him child custody as well.

Landmark cases

Surindar Kaur vs. Harbax Singh (1984)

The appellant and the respondent were married to each other under sikh traditions and shortly moved to England in this case. After a while, the relationship between the two began to deteriorate, and the husband was allegedly planning to kill his wife through a hitman. Consequently, the husband was found guilty and was given a sentence of three years. However, the wife later asked for the husband to be released on probation. One day, when the wife was at work, the respondent took their child from England and came back to India. The wife filed a suit against the husband for illegally taking their child away from her.

In this case, the Supreme court held that the place where the child lives or is resident will be the place or location for the court to decide custody as well. Here, the spouse’s matrimonial home was in England; therefore, the father could not deny the English courts the right to pass custody decisions. The court stated that a child’s welfare will be promised only to the mother as decided by the English courts. The provisions cannot take over the paramount concern of the welfare of the child.

Gita Hariharan vs. Reserve Bank of India (1999)

The petitioner in the case approached the defendant to issue bonds for his son and signed off as his guardian. The defendant sent the application to the petitioner and demanded that she show her guardianship proof from a competent authority in order to be the son’s guardian in the bank. RBI deemed that the father of the child was the natural guardian as per Section 6 of the Hindu Minority and Guardianship Act, 1956. As per the provision, the mother is the next in line to be the guardian of her child after the father. The petitioner challenged this claim in the Supreme court for the violation of the right to equality under Articles 14 and 15 of the Constitution of India. The court held that both the father and the mother are the guardians of the child, and the mother can claim her right over the child whenever she wants. The mother was then allowed to sign off as her son’s guardian for the bail bonds.

Sheila B.Das vs. P.R.Sugasree (2006)

The parties in this case were married to each other under the Special Marriage Act, 1954. One day, the wife left the matrimonial home with their child and relocated to Kerala. The respondent accused the wife of wrongfully taking their child away from his custody. The Supreme court held that the custody of minor female children was given to the father as per the choice of the child with the observation that the child was highly intelligent and was in a position to make intelligent choices. It is neither the welfare of the father nor the welfare of the mother that is the paramount consideration for the court.

Gaurav Nagpal vs. Sumedha Nagpal (2008)

According to the appellant, the respondent in the present case had abandoned their child and then later filed for custody. The appellant was granted interim custody earlier, and the respondent wanted some maintenance and guardianship of the child as well. Therefore, the District Judge held that taking the child away from the father would not be in the best interest of the child. The respondent further filed a SLP stating that their child was taken from her absence by the father forcefully, and later on, the father shifted to Bahadurgarh with the child. Here, the appellant did not really have a fixed place of residence where he could keep the child and was constantly moving from one place to another.

The Supreme court laid down several principles regarding child custody. The court stated that every child custody case needs to take into consideration the welfare of the child and the upbringing of the child as the utmost factors for giving custody. The welfare of the child is of paramount consideration. Regarding the present case, the Supreme court gave the child custody to the mother, stating that the father was not capable of caring for the child and did not have a stable home.

Conclusion

The custody of a child remains one of the most sensitive and convoluted issues caused due to the separation proceedings of the parents. The custody, as seen, is guided mainly by the middle ground established by the judges in this regard. There has been a marked controversy between the various religious laws and the uniform legislation enacted by the State. However, the controversy regarding the various viewpoints of law should not compromise the future of the child. While resolving various pieces of legislation, it should be remembered that the welfare of the child, along with assured social security, is the prime motive behind the custody of a child. Hence, any hindrance caused by law on this front should be addressed and then rectified.

Frequently Asked Questions

How does the court decide upon visitation rights?

The courts take into consideration several factors before granting visitation rights to the parents, such as the age of the child, the distance between the parent’s home and the child’s, the schooling of the child, and the relationship the child has with the parents.

What if the child does not want to meet the parent who has the visitation rights?

The visitation rights of the parents cannot be revoked only because the child doesn’t want to meet them, as often the children are coaxed by the other parents. If the court feels that the visitation rights of the parent will harm the child, the court has the power to revoke the visitation rights.

How does the court calculate child maintenance?

The court considers the financial status of the parents of a child before deciding the child’s maintenance. Necessities of the child, like support, education, healthcare, and accommodations, will be covered in the maintenance.

Does a parent with better financial stability get custody of the child?

The financial status of the parent does not give a parent the custody of the child. The court takes into consideration whether the parent would be able to raise the child according to his/her welfare.

Does an unmarried mother have to file for child custody?

An unmarried mother is the child’s guardian automatically and does not have to file for it.