In this blog post, Anubhav Pandey talks about the legal custody of child after parents get separated or divorced in India.
One of the prime reason for a long pendency of divorce cases in India lies in the question – ‘with whom the custody of the child will rest’.
What are the laws that deal with custody of the child when the parents get separated? Are there different laws for different religion? What is the law governing child custody of a legitimate child among Hindus? What are the laws which govern custody of a child born out of wedlock in Muslims? Who has the legal custodial right of their child after divorce in Christians?
Is there any secular law which deals with matter pertaining to custody of the child in India? A detailed blog post on who has the legal custodial right of the child born out of wedlock in India.
Hindu Law Governing Custody of Child after Divorce or Seperation in India
For Hindus, the law governing custody of child is the Hindu Marriage Act.
According to the provision of Hindu Marriage Act, there are 3 ways of dealing with the questions relating to child custody, education as well as maintenance when a couple either go for divorce or judicial separation.
The three ways in which court intervene in matters related to custody of the child born out of wedlock among Hindus are –
- Imposing the right of custody from time to time.
- Altering the right of custody from time to time.
- Revoking the right of custody from time to time.
While deciding the factor as to who will have the custody of the child, child’s wish is often taken care of wherever possible. Court from time to time intervene with the custodial rights of the children.
The Court looks into the matter with utmost care. Solution to the question as to who will have the custody of the child after divorce or judicial separation is based on the factor as to what will be most beneficial for the child.
- If custody with the father is more promising then the father will have the custody.
- If under mother’s custody child’s future is more secure then custody will go to the mother.
Court from time to time has the power to intervene in the matters relating to child custody. Therefore, if the custody has gone to the father and father is not performing his duty well, the custody might shift to the mother or any such relative with whom future of the child seems secure.
Hence, no judicial order is fixed in matters of child custody. The Court can alter changes in its pronouncement from time to time.
If the finding of the court after passing of the order of child custody is not in affirmative, court might revoke the custody and grant it to the opposite party.
Therefore, when a mother was given custody of her child and she did not perform her duties towards the child properly, the court revoked the custody and gave it to child’s father.
The Court is also aware of the trauma from which the child goes through and therefore, a statutory time limit has been set and matters relating to custody of the child is to be disposed off within a period of 60 days.
Natural Guardian of a Hindu Child
Custodial matters of a child are also decided according to “who is the natural guardian of the child“.
The law governing this issue is Hindu Minority and Guardianship Act. The act talks, among other things, who is the natural guardian of a child.
- The Natural guardian of a Hindu minor, irrespective of minor’s will in both property and person, is as follows-
- Where minor is a boy or an unmarried girl: Till the age of five, the natural guardian is the mother of the child irrespective of whether the child is a boy or a girl. After five, father is the natural guardian of the minor and, after father, is the mother.
- Provision in case where child is adopted.
- In cases where custody of an adopted son is being contested, the natural guardian of such child is first the adoptive father and then the adoptive mother.
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, the High Court must –
- 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.
- In the case where the mother was living with a stranger, custody is awarded to the father and not the mother.
There is a presumption that a minor’s parents would do their best to promote their children’s welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure.
This presumption arises because of the natural, selfless affection normally expected from the parents for their children. There is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare. The father’s fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances.
If the custody of the father cannot promote their welfare equally or better than the custody of the mother then, he cannot claim an indefeasible right to their custody merely because there is no defect in his personal character and he has the attachment for his children which every normal parent has.
No doubt, the father has been presumed by the statute generally to be better fitted to look after the children, being normally the earning member and head of the family, but the Court has in each case to see primarily to the welfare of the children in determining the question of their custody, in the background of all the relevant facts having a bearing on their health, maintenance and education.
The family is normally the heart of our society and for a balanced and healthy growth of the children, it is highly desirable that they get their due share of affection and care of both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable circumstances becomes necessary, the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances.
Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish and who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them.
The children are not mere chattels nor are they mere playthings for their parents.
Custody of Minor Child in Muslim Law
The Muslim law recognizes that a mother is of all persons most desirable to have the custody of a small child so that proper care and attention can be given to him. There is no Quranic verse fixing the age-limit of custody of children and no evidence from the practice of the prophet is recorded. But in the moral sphere, it is specified in the Quran that the mother should breastfeed her offspring for two whole years. This moral injunction implies in the ethical sense that the custody in the first instance belongs to the mother.
The Hanafi school entrusts the mother to have custody of her daughter until she attains puberty and of her son till he is 7 years of age, while the shafi’i and Maliki school entitle the mother to have custody of a female child until her marriage.
The right of the mother to the custody of her children continues even when she is divorced by the father of her children but she forfeits the right in certain circumstances –
- If she marries a person not related to the minor within the prohibited degrees.
- If she resides during the subsistence of the marriage at a distance from the father’s place of residence.
- If she neglects her children or fails to take care.
- If she leads an immoral life e.g. if she is a prostitute or by the change of religion.
There is another rule of Islamic law that the basis of custodianship is the welfare of the minor, hence if the Court thinks that the fact and circumstances of the case shows that it will be for the welfare of the minor to be placed under the custody of the mother even if she marries a person not related to the minor within the prohibited degrees, it will be in accord with the Islamic principles.
- In case the mother is not alive or not capable or is absent, the custody of a boy below 7 and a girl below puberty goes to other female relations of the child.
They are in order of priority –
- Mother’s mother
- Father’s mother
- Full sister
- Uterine sister
- Consanguine sister
- Full sister’s daughter
- Uterine sister’s daughter
- Consanguine sister’s daughter
- Maternal aunt
- Paternal aunt
- Failing the above female relatives, the custody of the child then passes to the males.
The father is among them, first in order of priority and failing him the paternal relations in order of priority, are the nearest –
- Paternal grandfather
- Full brother
- Consanguine brother
- Full brother’s son
- Consanguine brother’s son
- Full brother of the father
- Consanguine brother of the father
- Son of father’s full brother
- Son of father’s consanguine brother
- In the case of a son above the age of seven and a girl who has reached the age of puberty, the custody belongs to the father and the paternal relations in order of priority. In classical Islamic law, father is recognized as the legal as well as the natural guardian of the person and property of the minor.
Custody of Minor Child under Christian and Parsi Law
Laws regarding custody of the child in Christian law is governed under Indian Divorce Act, 1869. It is a secular act which governs child custody of all religions.
In a judicial separation, the custody of the child is decided by the court on various grounds.
If the court thinks fit, the custody can be shifted to either mother or the father during the pendency of judicial separation.  In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may from time to time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit.
Under the Parsi law, custody is governed by Guardian and Ward Act, 1890. Guardian and Ward Act keeps the interest of child paramount and the procedure is not very different from custody under Indian Divorce Act.
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References – Mamta v. Ashok Jagannath Bharuka, (2005) 12 SCC 452
 (1973) 1 SCC 840
 Dr. Taslima Monsoor, (1997) 8 DULJ 49, Women’s Rights under Muslim Family Law with Particular Reference to Custody and Guardianship, as taken from www.scconline.com
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