The article is written by Harmanpreet Kaur from Amity University, Kolkata. The article will give an understanding of the various provisions relating to the custody of the children.
Personal laws have been made and introduced with an aim to address rights and obligations relating to marriage, divorce, custody, guardianship, and adoption. The personal laws have been adopted from the English legal statutes.
The most common argument when a conflict arises between the husband and wife after the dissolution of their marriage is that of the custody and guardianship of children. The term ‘custody’ has not been defined in any of the Indian personal legal systems, including religious and secular, but is closely linked with that of guardianship. If there is any case that is to be decided on the perspectives relating to custody, access, education, and maintenance of children, the court passes the order with references to the provisions made under The Hindu Marriage Act, 1955; The Special Marriage Act, The Guardianship and Wards Act, 1890. The Supreme Court has stated in its varied judgments that in order to determine and decide the cases of child custody, it is the welfare of the child that should be a primary concern and not the rights of the parents.
The article will give an insight into the various statutory laws, relating to the custody of the child in the personal laws namely, Hindu laws, Muslim laws, and the Parsi and Christian laws, and also various other aspects relating to the same.
Statutory laws in India and custody of the child in their language
There are various statutory laws in India that precisely provide the provisions related to the custody of the child. Though the term ‘custody’ has not been defined in any of the statutes in the personal laws and in any other Indian statutes, there are provisions in the Hindu, Islamic, Persian and Christian laws that the courts cite while deciding the case related to the custody of the child.
Guardians and Wards Act, 1890
The Guardianship and Wards Act, 1890 is a secular Act that applies to all religions irrespective of their religion, caste, creed, sex, or place of birth. It is an Act that regulates the questions of laws relating mainly to the custody and guardianship of minors. It was enacted by the parliament to protect the interests of the minor and conferred on the district courts the power of appointing guardians of minor children belonging to any community. Under the Act, the term minor is referred to as a person who has not attained the age of 18 years i.e., it would include a child under the definition. The court while passing orders in respect of the guardianship and custody of a child should take into consideration the welfare of the child as stated under Section 7 of the Act.
The law of guardianship was developed by the Indian courts during the British regime. Guardianship in modern law essentially implies an idea of protection to the children. Guardian has been defined under Section 4 as the person “having the care of the person of the minor or of his property or of both person and property”. Guardians under the Hindu law have been classified into: natural guardians, testamentary guardians, and guardians appointed or declared by the court.
The three persons recognized as natural guardians are father, mother, and husband. Under the Hindu Law, the legislations governing custody and guardianship of a child are:
- The Hindu Marriage Act, 1955:- Section 26 of The Hindu Marriage Act, 1955 states that the court has the power to pass interim orders with respect to the custody, maintenance, and education of the minor child. The custody of the child will be decided by the court after the dissolution of marriage keeping in consideration the provisions related to custody and guardianship under The Hindu Minority and Guardianship Act as stated below.
- The Hindu Minority and Guardianship Act, 1956:- Section 6 of The Hindu Minority and Guardianship Act, 1956 talks about the natural guardians.
- It is stated that the father is the natural guardian of his minor legitimate children, sons, and daughters, and he cannot be deprived of the natural guardianship of his minor child unless he has been found unfit. After the death of the father, it is the mother who will look after the child. There have been various circumstances stated by the judiciary, wherein the mother can act as a natural guardian like where the mother and father of a child have fallen out, the mother has been living separately from the father, and also where the child was under the protection and care of the mother. Thus, it was also stated under Section 6 by the Supreme Court that where the father has failed to exercise his powers and functions as a natural guardian, then the mother would be appointed as a natural guardian of the child.
- The mother is the natural guardian of the child who is illegitimate. She is the natural guardian of her minor child only if the father is dead or is incapable of acting as a guardian. It was held in Chander Prabha v Prem,1969 that the mother is entitled to the custody of her child below five years unless the welfare of the minor requires otherwise.
Section 9 talks about the testamentary guardians to the child meaning that the parents have the power to transfer the custody of the child to any of the persons appointed by them. The custody of the child can only be given to the testamentary guardian, if he is financially stable, and can impart education and all other benefits to the child. The courts also have the power to grant custody of the child to any of the persons if it deems fit and proper, for the welfare of the child. The certified guardians are controlled by the Guardianship and Minority Act, 1890.
Under the Mohammedan Law, the guardianship of the minor’s person for custody i.e., hizanat has to be given with reference to the age of the minor and his relationship to the guardian:
- Mother : Under the Hanafi law, the mother is entitled to the custody of her male child, until he has completed the age of 7 years and of her female child until she has attained puberty. Whereas under Shia law, the mother is entitled to the custody of her male child till the age of 2 years and of her female child till the age of 7 years. She is referred to as the de facto guardian and also has no right to alienate the property of the minor unless ordered by the court. If the mother fails, then the custody will be passed on to the relatives of the mother.
- Father : Under the Hanafi law, the father is entitled to the custody of a boy over 7 years of age and of an unmarried girl who has attained puberty. However, under Shia law, a father is entitled to the custody of a male child over 2 years and an unmarried girl of 7 years and more. If the father fails, then the custody will be passed on to the relatives of the father. The right of the mother to the custody of the child will be terminated if she is found to be committing adultery or any other criminal offenses
Parsi and Christian law
The custody of the child under the Parsi and Christian law is governed by the Parsi Marriage and Divorce Act, 1936. Under Section 49 of the Act, it is stated that the court can pass any interim order with respect to custody, maintenance, and education of the children, as it deems fit and proper from time to time for the welfare of the child.
Special Marriage Act, 1954
The Special Marriage Act, 1954 was enacted by the parliament to give recognition to inter-caste and inter-religion marriages, applying to the Indians and the nationals residing in foreign countries. It also provides a provision for registered marriages or civil marriages, as the parties may wish. Section 38 of the Act provides the provision for custody of children, stating that the court is under the jurisdiction and has the power to pass interim orders for the benefit of the child with reference to custody, maintenance, education, and proper well-being of the child.
The concept of paramount consideration and its conflict with the resident parent
The natural guardian, testamentary guardian, de facto guardian, and the guardians appointed by the court have been given the right of custody to the children. The rights of custody would include imparting reasonable care and protection, education, and a healthy environment to the children. The rights are conferred on the guardians in the interest of the minor children and therefore exercise of these rights is subject to the welfare of the minor children. It is a well-established proposition of law that in all matters relating to children, including access and custody, the welfare of the children should be of paramount consideration. The factors relevant to determine the welfare principle of the child would include better economic and financial conditions, protection, love and care of the children, a healthy and safe environment, and the relationship of the child with the parents. It was held in the case of Mausami Moitra Ganguli v. Jayanti Ganguly, 2008, the child had been living with the father, the mother had left him when he was 3 years old. The child was studying in a good school and wanted to stay with the father, so the father was granted custody of the child.
- Section 17 of the Guardianship and Wards Act, states that the courts, while deciding the custody of the child, will consider ‘welfare of the minor’ as the primary concern’ and those welfare conditions would include imparting support, education, and health to the child as stated under Section 25 of the Act.
- Section 13 of the Hindu Minority and Guardianship Act, 1956 also states that in order to grant custody to the guardians of their child, the welfare of the minor should be of paramount consideration. The court can also pass interim orders if the guardian is found guilty that the child is not been provided the basic care and necessities, thus infringing the ‘welfare principle’
The guardians and the resident parent contend to the principle stating that the ‘welfare principle’ infringes and violates their respective rights and liabilities as has been guaranteed by the various Indian statutes and also under their respective personal laws.
The twin objective of the welfare principle
‘Best Interests’ is the most important factor that has to be given a primary concern with respect to making decisions regarding the custody of the children. The concept of the welfare principle is derived from the term ‘best interests’.
The concept has been adopted by the Indian Courts from Article 3 of the UN Convention on the Rights of the child. Article 3 states that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. It states that the best interests of the child would include his views and aspirations, an identification that should be respected, irrespective of his caste, sex, or religion, should be given proper care and protection, and his well-being, entitled to a healthy environment and possesses right to education and maintenance.
Under Section 37 of the Family Courts Act, 1984, and Section 16(3) of the Divorce Act, 1869, there are several factors to be considered while determining the ‘welfare principle’ are:
- Wishes of the child,
- Age of the child,
- Gender of the child,
- Any medications that the child may require i.e., health benefits
- Religious and cultural considerations,
- Financial and economic stability,
- Reasonable love, care, and protection,
- Healthy environment.
Thus it can be stated that the ‘welfare principle’ and the ‘best interests’ are closely related to each other, and this concept has given a wider connotation to the Indian legal statutes including the personal laws.
Possible case laws highlighting such scenario
There have been various instances, wherein the cases have been decided by the court with reference to taking into consideration the ‘welfare principle’.
Prateek Gupta v. Shilpi Gupta & Ors, 2017
In this case, the husband and the wife moved to the USA after the solemnization of their marriage, and out of wedlock, two sons were born. After a specific period of time, the couple started having issues in their marital life, and headed for divorce, and consequently got divorced. The custody of the children was granted to the mother, and the father was allowed to meet their children on the basis of visitation rights provided by the court. On one such occasion, the appellant took one of their children with him by conducting foul play without any prior permission and consent from the respondent and left the USA with the child.
The respondent filed a suit in the Juvenile & Domestic Relations court in the USA. The court granted the custody of the child to the mother and ordered the appellant to return the child back to the mother.
The appellant was aggrieved by the decision of the US court, and filed a writ petition under Article 226 of the Constitution of India, seeking a writ of habeas corpus, contending that the respondent took the custody of the child illegally. The High Court too passed the decision in the favour of the respondent.
The case was taken up to the Supreme Court by the appellant by filing a special leave petition under Article 126 of the Constitution of India. The supreme court allowed the appeal of the High court in the case and stated that:
- The doctrine of ‘intimate contact’ and closest concern are of persuasive materiality, when the child is uprooted from his native country, it affects his growth and all the necessities.
- The appellant being the biological father should not be deprived of his guardianship rights under the Guardianship and Wards Act, 1890, but also stated that as the child was a minor and stayed with his mother and she was able financially and was providing him the best interests, the court decided to grant the custody to his mother until he attains the age of majority.
- The welfare of the child should be of paramount consideration, and the guardians of the child are abided to follow it, and because the child was abducted by the appellant according to the municipal and international laws, it has led to jeopardizing the safety of the child, thus violating the welfare principle.
Gaurav Nagpal v. Sumedha Nagpal, 2008
In this case, the child was born out of wedlock from the parties. The respondent abducted the child and filed a writ petition before the High court and the Supreme court for the custody of the child to be granted to the respondent. The court passed an interim order and granted custody to the appellant for the child of 20 months. The respondent was aggrieved by the order of the court and filed a petition in terms of maintenance and also under Section – 13 of the Guardianship and Wards Act, 1890.
The High court dismissed the appeal of the appellant and granted custody of the child to the respondent-wife under Section 6 of the Hindu Minority and Guardianship Act, 1956 and Section 25 of the Guardianship and Wards Act,1890.
The Supreme Court granted the custody of the child to the mother, stating that the welfare of the child should be of paramount consideration. The other orders that were passed by the court included:
- Both the legal and the human angles should be looked at before deciding custody of the children.
- Minor’s moral and ethical welfare is important for the children.
- Visitation rights should be granted to the parents.
Abdulsattar Hussain Kudichikar v. Shahina Abdulsattar Kudichikar, 1995
In this case, the parties were Sunni Muslims and got married in June 1988. The father was a medical representative and the mother was working in telecommunication. Out of the wedlock, a daughter and a son were born. In 1994 the appellant gave divorce to the respondent and remarried in 1995.
An application was filed by the mother in 1994 to claim the custody of her son alleging that in accordance with the personal laws, she is entitled to the custody of her son as he was below 7 years of age. The mother complained that the child was snatched away from her and was illegally detained by the father. The father contended to the mother’s claim stating that he was able to look after the welfare of his son and thereby should be given custody.
The court while deciding the issue of the custody, applied the principle of the welfare of the child to be of paramount consideration and held that though there is no dispute that in accordance with the Muslim Law, it is the mother who is entitled to the custody of a male child until he has completed the age of 7 years but the welfare of the child should also be taken into consideration. The court further observed that to keep the child in the custody of the mother is in the welfare and interests of the child.
The shift in the interests of the child with each passing day
The only disputed question when the couple proceeds to divorce and judicial separation is the custody of the child. Over the last few years, there has been a shift in the custody and access of the children i.e, the ‘right of a parent’ and the ‘right of a child’. The courts while deciding the issue of the custody of the child have laid down that it is the welfare principle that should be of paramount consideration.
The courts in the various precedents have voiced their opinion stating that the earning capacity of the parent is not enough for the custody of the child, but it must be decided on the basis of a healthy and safe environment. It has laid down that the custody of the child should be granted to the parent, as to what suits his ’best interests’, but not on the provisions of the personal laws that make the father a child’s natural guardian. The courts have also stated that it is the supreme guardian of the child and thus holds the right to pass interim orders for his welfare. It has the right to grant guardianship to a child on the basis of natural guardians, testamentary guardians, and the guardians can also be appointed by the court if necessary as it deems fit and proper. Gender-neutral laws are also a need of the hour in deciding the custody of the children, as there are various instances where the courts have granted custody on the basis of personal laws and neglected the principle of welfare of the child.
There has been a paradigm shift in child custody and the courts from time and again have taken decisions pertaining to the custody of the child. Thus, it can be presumed from their judgments that the rights of the children are being given utmost importance while deciding the cases related to custody. The only touchstone is the interest and the welfare of the child and nothing else. The convenience and contentment of the parents is totally immaterial.
- Modern Hindu Law, 23rd edn, Dr.Paras Diwan.
- Mohammedan Law, 26th edn, Aqil Ahmed.
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