In this article, Mohd. Hashim Miyan discusses custody of children after divorce.

Introduction

Custody of the children means when a parent separated or died, then the legal right or duty to care for children or his property.

• The custody of the child granted/awarded/gave by the court to the father.
• The custody of the child got/received by the mother.
• The parents were given joint custody.

The term child custody used in family law in which courts to define legal guardianship of a child under the age of minority i.e. 18 years old. At the time of divorce, the custody of the child often becomes a matter to determine by the court to resolve the issue. In most matter, the custody of the child legally to be shared by both the parents but in case of physical custody of the child, gains by one parent. Often the Family law courts make decisions on the best interests of the child or children, not on the best arguments presents by each parent.

Custody under Hindu, Muslim, Christian and Parsi Law

India is a secular country for this to make provisions for dealing with the matter of child custody enacted the matrimonial legislation under personal law. Such as:

Custody under Hindu Law

To deal with matters related to the custody of the child under the Hindus law. They have an additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Irrespective of caste, community or religion, there is a secular law to deal with matters relating to appointment and pronouncement of guardians. However, the Indian Courts in certain matters will give consideration to the personal law of the concerned parties. At the time of determining the question of custody of children, the court should read both the provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act 1890 in the welfare of the minor and not in derogation to each other. To define the word welfare means to include the moral as well as physical well being of the child and also have regard to the ties of affection.

The Mother is the original guardian of the child up to the age of 5 years as per the Hindu Minority and Guardianship Act, 1956.

There are so many views quoted by the judges relating to this- such as in view of Beaumont, CJ. ‘There is no possible way to find the adequate option for the child if the mother is a suitable person for caring.’

In Re kamal Rudra Das J. expressed the same view recently that: I have no hesitation in my mind that the mother’s lap is God’s own support for a child of this age, and that as between father and mother, other things being equal, a child of such caring age should remain with mother.

In case of male children above the age of 16 years and in case of the female above the age of 14 years, the courts considered the view of them which has been taken in the case for their welfare. In the case of Venkataramma Ayyangar v. Thulasi Ammal[1], the court held that if the children’s wishes found to induced by wholesale persuasion and were even tortured then the court has to be disregarded.

Custody to the third persons- Generally, custody of the children should be given to either of the parents. But in the case of the welfare of the children, the custody should be given to the third person also. In case of Baby Sarojam v. Vijayakrishnan Nair[2], the guardianship of the two minor children allowing to the maternal grandfather, the court expressed that regardless of whether the father was not discovered unfit, custody may be given for the welfare of the child to the third person.

Custody under Muslim Law

The matters relating to the custody of minor children shall be deemed to be under the provision of the Muslim Personal Law (Shariat) Application Act, 1937. It has been upheld under the Hon’ble High Court of Delhi in case of Mohammad Nihal vs. State, that concerning matters pertaining to succession, inheritance, marriage, divorce, guardianship, etc, the Muslim Personal Law (Shariat) shall be applicable if the parties are Muslims.

Mother’s right of hizanat-   The most importantly appropriate to have the guardianship of youngsters has a place with the mother and she can’t be denied of her right insofar as she isn’t discovered blameworthy of unfortunate behaviour. Mother has the right of guardianship in as much as, she isn’t disqualified. This right is known as the right of hizanat and it is very well may be authorized against the father or some other individual. The mother’s right of hizanat was exclusively perceived in the interest of the children and in no sense, it is an outright right.

In case of Son-  It is an established rule among the Hanafis that the mother’s right of hizanat over the son remains until he completes the age of seven years. In case of Shias the right of custody of her son up to the age of weaning. In view of the Malikis the mother’s right of hizanat over her son till the age of puberty. The rule among the Shafiis and Hanabalis is the same as the Malikis.

In case of Daughter- In view of the Hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Hanabalis, Shafiis and the Malikis the right of the mother of custody over her daughters continues up to they are married. In case of both the parent’s absence or on their being disqualified the grandfather is entitled to custody.

Father’s right of hizanat- The father’s right of hizanat recognize in all the schools of Muslim law under two conditions that are:

1. On the completion of the age by the child up to which mother or other females are qualified for custody.
2. In the absence of the mother or other females who have the privilege to hizanat of minor children.

Custody under Christian Law

There is no provision relating to the custody of children under Christian law but the matters are well solved by The Indian Divorce Act, 1869 which is applicable universally. The Indian Divorce Act, 1869 contains provisions concerning the custody of children. The provision of the custody of children provides under section 41 of the said Act with the order of separation in a suit. The court may from time to time in a suit of a judicial separation make such interim orders before making its decree, as it deems fit with respect to the custody, education, and maintenance of the minor children, the marriage of whose guardians is the subject of such suit, and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the said Court.

In the case of ‘Rosy Jacob v. Jacob A. Chakramakkal'[3], the Court held that:

All orders identifying with the authority of the minor wards from their extremely nature must be viewed as temporary orders made in the current conditions. With the changed conditions and conditions, including the progression of time, the Court is qualified for vary such orders if such variation is considered as in light of a legitimate concern for the welfare of the wards.

Custody under Parsi Law

The matter relating to the custody of the children under the provisions of The Guardians and Wards Act of 1890 in which it is a well-settled principle that the welfare of the child is paramount i.e. the most important thing adopted by the Guardian Court when deciding custody.

There are factors considered by the courts when deciding the matters relating to the custody of children:

• The welfare of the minor child shall be considered in every case relating to it.
• The personal law of the father should take into account relating to the age, sex, and religion of the minor. The custody of the younger children should be given to the mother for the welfare of the child.
• If in the opinion of the court the allegations against the mother’s custody are baseless it shall be rejected.
• The courts prefer to keep children united and award custody of both to either the mother or the father.
• The preference should be given to the minor usually up to the age of 9 years old.
• The court considered that the child’s comfort, health, material, intellectual, moral and spiritual welfare.

257th report of the Law Commission of India

The Commission said on its 257th report on ‘Reforms in Guardianship and Custody Laws in India’ that change in laws will let courts to regard as awarding joint custody of children in situations beneficial to the welfare of the child.

In the present situation, Courts in India grant a minor’s custody to one parent or the other relying upon who they think will guarantee the child’s welfare, however the legal position is distinctive in Hindu law, which considers the father the natural guardian, and other secular laws, which consider the mother the natural guardian of a child.

According commission children are the worst affected in proceedings of divorce and family breakdowns. Often, children face upheavals which arise due to the family breakdowns without considering the emotional, social and moral activities by the parents. Children used by the parents as pawns.

This irregularity is tended to through changes to the law that will put an obligation upon the court to maintain the child’s welfare for each situation. This will guarantee that the child’s future is sheltered and secured, regardless of changing familial conditions.

In India, the Courts have accepted the welfare principle, but the legislation is preferred changes, by which a new chapter on custody and visitation arrangements in the Guardians and Wards Act, 1890. Even now under the amended provisions, the child’s grandparents can also apply for grandparenting time order.

Conclusion

Even though the court has taken into consideration the personal law of the parties at the time of custody of the child but the child’s welfare is of paramount importance and cannot be over-ruled by the personal law because the welfare of the child always is the deciding factor. However, at the same time, while deciding the custody of the children the personal law cannot be totally sidelined as the personal law would be an essential feature of the welfare of the child and should also be taken into consideration.