Custody of the Child & Its Legal aspects

Child custody arises during divorce

Custody of the child turns into a hotly disputed issue in almost every proceeding for divorce or judicial separation. The issue crops up when the husband and wife prefer to live separated and fight each other for the custody of the child who is supposed to get the care, consideration and love of both.

Child custody refers to the process of controlling, caring and maintenance of the child in respect to its education, development, and medical, emotional, physical wellbeing.

Who is a child or minor?

A child, in general, is a minor person having not attained the age of 18 years.

As per Section 4 of the Guardians and Wards Act, 1890 (G&WA) a minor is a person who, under the provisions of the Indian Majority Act, 1875 (IMA) has not attained the age of majority.

The Section 3 of the IMA stipulates that every person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before.

Therefore, a person is considered a minor if he or she has not attained the age of 18 years.

Traditional notions of courts

Courts follow a traditional notion that mother is the primary caregiver of the child. She has the legitimate right to get the custody when parents separate. No one else is a better custodian of a child than its mother. But the notion is not true in every case.

The custodial parent has primary responsibility for the child’s education, development and other forms of well-being.  But the non-custodial parent has the right to access to the child despite the physical custody is with the other.

Main criterion is welfare of the child

In determining the issue of custody of a minor child by the court, the prime consideration is the welfare of the child. The rights of the parents under the statutes in force do not matter much while considering the child custody dispute by the court.

The Supreme Court in Tejaswini Gaud v Shekhar Jagdish Prasad Tewari states, that the court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child.

In short the paramount consideration for the court in child custody case ought to be the interest and welfare of the child, but nothing else.

Welfare of the child to be decided based facts in hand

There is uncertainty and lack of judicial consensus on what exactly constitutes welfare of the child. As a result, in fiercely fought custody battles, there are no ways to ensure that the interests of the child are actually protected. At present, the courts strive to grant both parents equal rights with regards to legal custody.

In fact, the welfare of the child has to be determined based on the facts and circumstances of each case. The court should not take a pedantic approach based on some straight jacket formula imposed on it by the case laws already decided based on their own peculiar facts and circumstances.

The welfare of the child cannot be measured by neither the money nor the physical comfort which the parent can provide.

The term welfare must be construed in its widest sense. It includes many aspects of practical life. The factors that constitute welfare of a child, broadly includes its safe physical upkeep, moral upbringing, education, access to economic factors etc.

Custody under HMA & SPA

The Section 26 of the Hindu Marriage Act, 1955 (HMA) and the Section 38 of the Special Marriage Act ,1954 (SMA) have similar provisions.

They say that in any proceeding in divorce or judicial separation or restitution in conjugal rights under the act, the court may, from time to time, pass interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children. It should be in consistent with the wishes of the children.

After the issue of the decree, upon application by a petition for the purpose, the court may make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders, in case the proceeding for obtaining such decree were still pending. The court may also from time-to-time revoke, suspend or vary any such orders and provisions previously made:

The application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

Under Hindu Minority and Guardianship Act 1956

The natural guardian in the case of a Hindu boy or an unmarried girl is the father, and after him, the mother, under the Hindu Minority and Guardianship Act 1956.  The custody of a minor, who has not completed the age of five years, shall ordinarily be with the mother.

In the case of an illegitimate boy or an illegitimate unmarried girl, natural guardian will be the mother, and after her, the father.

No person shall be entitled to act as the natural guardian of a minor, if he has ceased to be a Hindu, or he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).

Custody under Muslim Law

The custody of a minor child in Islam is called Hizanit, which means the care of the infant.

As per the Shariat law that applies to Muslims, the father is considered to be the natural guardian of his children irrespective of sex. But the mother is entitled to the custody of her son till the age of 7 years and of her daughter till she attains puberty.

Therefore, under the Muslim law a male would attain majority/adulthood when he reaches the age of 7 years and a female would attain majority on attaining puberty.

The personal law of the parties has to be kept in view in deciding an application for custody as per Section 6 of the G&WA. The Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 also states that, regarding matters pertaining to succession, inheritance, marriage, divorce, guardianship, etc, where the parties are Muslims, the Muslim Personal Law (Shariat) shall be applicable.

Custody under Christian Law

The custody of child relating to the Christians come under Section 41 to 44 of the Divorce Act, 1869.

The child is given to parent who is proved to be a batter one for the child.

Custody under Parsi Law

The custody of a child under Parsi law is dealt with the provisions of the G&WA.

Its main aim is the welfare of the child. The court can do anything to ensure the welfare of the child.

Mother has a better chance to get custody

The tender years rule has statutory recognition. It suggests that the custody of minor children who have not completed the age of 5 years should ordinarily be with the mother irrespective of the fact that the father is the natural guardian of such minors.

The courts in general attempt to grant both parents equal rights with regards to legal custody. It would help the child interact with both parents rather than just one.

However, in some cases, the court may grant only one parent the legal custody of the child and other one the visitation rights at specified times. While deciding the custody, the mother gets priority.

Most of the judges are not inclined to alter existing custody arrangements if things appear to be working well.

Situations when the father can get custody

If the mother is mentally unstable, then the father will get the child custody.  If the child is above the age of 13 years and expresses his wish to stay with the father, the Court normally grants custody to the father.

The father will get custody in situations where the mother has an immoral character or some other vices that may affect the child’s overall development of the personality.  The custody of the child will go to the father if the mother is a convict in a criminal case.

If the father proves that the mother is financially incapable of maintaining the child in a manner that may affect the child’s upbringing, he may get its custody. If the father has a better financial condition than the mother the father may get some advantage in getting the custody.

But the points stated here are indicative but not exhaustive.

Writ of habeous corpus in child custody issues

Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention.

The writ can be used to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ relating to the custody of a minor child.

In child custody matters, the High Court has powers only in cases where the detention of a minor by a person who is not entitled to his legal custody. Therefore, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

The proceedings in the nature of habeas corpus are summary in nature, where the legality of the detention of the alleged detenu is examined on the basis of affidavits placed by the parties. However, nothing prevents the High Court from conducting a detailed enquiry in cases where the welfare of a minor is in question.

Custody cases to be decided with a human touch

The law relating to custody of a child is fairly well settled. In deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions.

Child custody is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. The paramount consideration for the court in selecting proper guardian of a minor should be the welfare and well-being of the child.

Law Commission of India report on Child Custody

The Law Commission of India submitted a detailed report titled Reforms in Guardianship and Custody Laws in India in the year 2015.

The legal framework in India is silent on how should custody issues be handled, what factors should be relevant in decision making, and what should be the process of dispute resolution between parents over children, among others.

Therefore, the report proposes how should be the ideal legal framework in India in regard to child custody and provides draft legislations. It narrates the emerging trends in global thinking and includes draft legislative bills in regard to child custody, as well.

Validity of some provisions are under challenge

The constitutional validity of certain legal provisions of various personal laws which favour granting custody of children to one of the separated spouses alone, overlooking the child’s welfare and fundamental right to have care and love of both the parents are being under challenge by a PIL Petition in the Supreme Court.

As per news reports, the Chief Justice of India has agreed to look into the matter.

Additional reading

  1. Report No 257 of the Law Commission of India on Reforms in Guardianship and Custody Laws in India, 2015.
  2. The Supreme court judgement in Tejaswini Gaud vs Shekhar Jagdish Prasad Tewari, delivered on 6 May, 2019, which enlists many high court decisions on child custody in the past.