This article has been written by Shriya Bhasin, pursuing Diploma in Legal English Communication – oratory, writing, listening and accuracy, and has been edited by Oishika Banerji (Team Lawsikho).
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
The most sensitive and traumatising issue that arises upon divorce or judicial separation of spouses is the custody of the children. The custody of the children has to be carefully dawned upon by the courts in order to promote the maximum welfare of the child. The child has already been enduring agony and adversity due to separation of his/her parents and therefore, the entrustment of the child is to be done along such lines as resulting in a downturn in despair of the child. The word “custody” has not been defined in any of the Indian statutes, but it generally means entrustment of a child’s care, control and maintenance to either of the parents upon judicial separation or divorce. Child custody specifically relates to the determination of the child’s physical and legal control and care to either of the parents, relative or a guardian. This article discusses the custody cases for divorced parents through the lenses of legal analysis.
Types of divorces
Divorce by mutual consent
This divorce relates to the divorce obtained with the mutual consent and agreement of both the spouses who have agreed upon that they can no longer continue to live and cohabit together and are willing to get separated and repudiate their marriage. There are different laws governing divorce by mutual consent under various religions, which are as follows :
- Hindu Law: Section 13-B of the Hindu Marriage Act, 1955 provides for divorce by mutual consent by both the parties.
- Muslim Law: Under the Muslim Law, two kinds of divorces by mutual agreement are witnessed i.e. Khula and Mubarat, both falling under the category of extra judicial categories of divorces.
- Christian Law: Section 10 A of the Divorce Act, 1869 deals with Divorce by mutual consent.
- Parsi Law: Section 32 B of the Parsi Marriage and Divorce Act, 1936 provides for divorce by mutual consent.
Note: Under Hindu, Christian and Parsi law, a petition for divorce by mutual consent cannot be filed unless both husband and wife have been living separately for a period of one year or more.
Contested divorce
Contested divorce, as its name suggests, denotes when one party vehemently opposes the other. In this type of divorce, one party is desirable and willing to repudiate the marriage while the other party is not. There is no mutual agreement between the parties to put an end to marriage. It is a One Sided Divorce where one party has grounds for separation which are challenged and resisted upon by the opposite party. The various provisions under different personal laws dealing with contested divorces are as follows :
- Hindu Law: Section 13 of Hindu Marriage Act, 1955 deals with One Sided Divorce.
- Muslim Law: Along with Talaq, Ila and Zihar (Constructive Divorces) are modes of Contested Divorces for Muslims
- Christian Law: Section 10 of the Divorce Act, 1869 deals with Contested Divorce.
- Parsi Law: Section 32 of the Parsi Marriage and Divorce Act, 1936 provides for One Sided Divorce.
Provisions of child custody under different types of divorces
Provision of child custody in cases where divorce has been obtained by mutual consent
Since, the divorce is obtained by mutual agreement between the parties, the parties (husband and wife) also incorporate the provision of the custody of their child in the mutual agreement. As such, both the parents can either mutually concede to joint custody or absolute custody to either of the parents, with or without permitting meeting and visitation rights to the other parent. All the terms and conditions relating to the legal and physical custody of the child has to be mutually consented to by both the parties.
Provision of child custody in cases of one sided divorces
Since, the divorce is not mutually agreed upon between the spouses, the issue relating to child custody cannot also be agreed upon mutually. There are various secular and personal laws governing entrustment of the custody of the child upon judicial separation or divorce by the courts. These are provided hereunder.
Hindu Law
Hindu Marriage Act, 1955
Section 26 of the Hindu Marriage Act, 1955 deals with the custody of the children, both of whose parents are Hindus. This section empowers the court to pass interim orders and make provisions as and when they feel the need to do so in regards to the custody of the child, keeping in mind the welfare and maintenance of the child to be of paramount consideration. The court is empowered to take such a decision in consonance with the wishes of the child.
Hindu Minority and Guardianship Act, 1956
Before the passing of this Act, Father was considered as the natural guardian of the minor child whereas, the mother was given a secondary role. Thus, the authority of the father as a guardian cannot be challenged. However, Section 13 of this Act states that the welfare of the child is of paramount consideration and has to be given due importance before granting custody of a child. This Act also entrusts the custody of a minor child below the age of 5 years to the mother.
Muslim law
Under the Islamic law, the first and foremost right of custody lies with the mother and she cannot be deprived of this right in any case except if she is disqualified or is found guilty of misconduct. This right is known as the right of “Hizanat” and it can be enforced against the father or any other person. Like the Hindu Law, this right of Hizanat was recognized on the sole principle of welfare of the child and is thus, not absolute.
Christian law
There is no specific statute under the Christian Law that deals separately with the custody of the minor child. However, the issue of custody under this law is resolved by the Indian Divorce Act, which is secular and is thus applicable to all the religions. Section 41 of the Indian Divorce Act, 1869 empowers the courts to grant interim orders for the education, maintenance and custody of minor children in cases of judicial separation. The court may also direct proceedings to be initiated to place such children under the protection of the court. The orders passed under this section are temporary orders and thus, can be modified and varied as per the changing circumstances and conditions keeping in mind the welfare of the child to be of Paramount consideration. The same was held in Rosy Jacob v. Jacob A. Chakramakkal (1973).
Parsi law
The issue of custody among the Parsis is dealt with by Guardians and Wards Act, 1890. This Act emphasises on the importance of welfare of the child. The custody of the child can only be decided keeping in mind the welfare of the minor. Also, Section 49 of the Parsi Marriage and Divorce Act, 1936 empowers the court to pass such interim orders from time to time governing the custody, maintenance and education of the minor child.
Secular Laws
The Guardians And Wards Act, 1980
Section 25 of the Act states that the welfare of the child is of Paramount consideration while deciding the entrustment of custody to the parent. Thus, this provision overruled the biasedness of the court to grant custody to the father, being the natural guardian and instead, bending the grant of custody towards the mother for the welfare of the child. The same was held in Balvinder Kumar Bishnoi vs Aasmaan & Ors (2017).
Special Marriage Act, 1954
Section 38 of the Act validates the right of custody of minor children whose parethe belong to different religions and have solemnised their marriage under the Special Marriage Act, 1954. The court is empowered to pass orders and judgements regarding the custody and maintenance of the minor, as it may deem fit from time to time for the support of the child and dispose of the concerned application within 60 days of service.
Types of custody
Joint custody
Under joint custody, both the parents get custody of the minor child. This does not mean that both the parents have to live together but the minor children will get to spend equal time with both the parents. This also does not mean that the child will be transferred from one house to another on a regular basis but will have only one home to which he will be habituated, thus granting regular visitation rights to the non-custodial parent.
Split custody
It refers to the arrangement in which one of the parents has the sole custody of one or more minor children whereas the other parent has the sole custody of the remaining children. This type of custody is granted in rare situations so as not to deprive the minor children of sibling love, mutual comfort and attention.
Legal custody
This kind of custody does not necessarily imply the parents having the child or vice-versa. It suggests that the parents are having the legal custody which is granted to them by the courts, which is usually entrusted to both the parents, except in cases where the divorce is chaotic and there is no mutual agreement between the parents. The parents can make decisions regarding education, lifestyle, medical treatments, etc. regarding the child.
Physical custody
When a parent is entrusted with physical custody of a minor, it suggests that the child will be under the guardianship of that parent with regular meeting and visitation rights being granted to the other parent. The main objective of this kind of custody is that the child is not deprived of the love and affection of both the parents and receives proper attention and care of both.
Factors determining the grant of custody
Wishes of parents
After the divorce, the court primarily asks which of the parents desire to have the custody of the child. In case of conflict between the parties, it is upon the court to grant custody to either parent, keeping in view the welfare of the child to be of the topmost priority. In case of mutual agreement between the parents, it becomes easy for the courts to grant mutual custody to the parent who desires to have the custody.
Inclination of children
The court also asks for the desires of their child and considers the child’s preference and inclination to a certain extent while deciding the custody of the child. The court determines that with which parent, the comfort of the child will be more.
Relationship between child and each parent
The court determines the strength of the relationship between the child and each parent. If the court notices that the child is more comfortable with one parent and their relationship is more feasible, it will grant custody to that parent with visitation rights to the other parent.
Mental and physical health condition of child and each parent
The mental and physical disability of the parents is of paramount consideration while deciding custody. In case of mental disability of either of the parents, the sole custody of the minor will be granted to the other parent. However, in case of physical disability, the physical custody will be granted to the other parent with visitation rights being granted to the parent with physical disability.
Allegations or neglect
If the court finds any of the allegations levelled against any of the parents to be true, it can deny custody to that parent on the ground of being unfit for the welfare of the child. Also, if the minor child is neglected by the parent to whom the custody is entrusted, it can revoke the custody and grant it to the other parent.
Age of the child
The age of the child is of paramount consideration while awarding custody. The courts are usually inclined to grant the custody of the minor children under the age of 5 years, to the mother.
Custody of kid for each parent
After divorce, both the parents have an equal right over the custody of the minor child. In absence of any mutual agreement, the court can grant custody to any parent keeping in view the factors mentioned above and make that parent solely responsible for the life decisions of the minor child.
However, the most important consideration while deciding the custody of the child is the welfare of the child. The Supreme Court of India and the high courts have held in a plethora of judgments that “welfare of the child” is of paramount consideration while deciding cases for custody. The Supreme Court held in Gaurav Nagpal vs Sumedha Nagpal (2008) that the moral and ethical welfare of the child must also be given due consideration along with physical well being.
It was held in Tejaswini Gaud vs Shekhar Jagdish Prasad Tewari (2019) that the welfare of the child inculcates a number of nuances like ethical upbringing, economic status, child’s comfort, contentment, inclination of the child , health, education, etc.
Conclusion
The custody of the minor child in India is dealt with various personal laws along with Guardians and Wards Act, 1890. The paramount consideration of the courts while deciding the custody is the welfare of the minor child. In case of absence of mutual agreement between the parties, the courts can grant custody to any of the parents keeping in consideration the desires and the well being of the child.
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