When a couple separates, in the case of divorce, if there exists a child, there arises a question as to what is the situation of that child. Custody of a child is the legal right to take care of the child who is a minor (less than 18 years) and his/her future and property in the event of separation or death of one of the parents. It is up to the Court to decide as to who gets the custody of the child. In general, there are 3 kinds of custody, as follows:
1. Joint Custody:
The Court awards the custody of the child to both the parents. It is dependent on the facts and the Court as to how the responsibilities would be shared by the parents. It is not mandatory for both the parents to live together for the custody, instead the parents can turn by turn have the custody of the child. The Court makes sure that both the parents can take care of their child prioritising the welfare of the child
2. Physical Custody:
In physical custody, the Court awards the custody of the child to a single parent while the other parent can have the provision of visitations and interactions with the child. This type of custody is done generally for ensuring a safe and healthy environment that would promote the welfare of the child.
3. Legal Custody:
Legal custody is having the rights to take decisions on the welfare of the child as in education, medical treatment, raising of the chid. This type of custody need not necessarily be the physical custody of the child. Generally, the courts grant such custody to both the parents, so that both of them parallelly have the right to make decisions on kid raising choices.
Laws governing custody of the child in India:
These are different laws governing different kinds of marriages and hence there are different laws governing custody of the child too. Hindus, Buddhists, Sikhs and Jains are governed by Hindu Minority and Guardianship Act, 1956 whereas Muslims are governed by Muslim Personal Law (Shariat) Application Act, 1937. Custody with respect to Christians is governed by The Indian Divorce Act, 1869 and Custody for Parsis are governed by The Parsi Marriage and Divorce Act, 1936. It should be noted that all these laws are in addition to The Guardians and Wards Act, 1890 which is not gender specific.
Hindu Minority and Guardianship Act,1956.
This act applies only to Hindus, Buddhists, Sikhs and Jains. The Hindu Minority and Guardianship Act (herein after referred to as HMGA) and The Guardians and Wards Act (herein after referred to as GWA) are not derogatory but complementary to each other and hence the Court considers both the acts harmoniously while deciding upon the matters of custody of child among Hindus. Section 6 of HMGA, states that the father, and after him the mother are the natural guardians of the child and are entitled to have the custody of the child provided that the child is above 5 years and the girl is unmarried.
Section 6(c) of HMGA, provides the mother to have the custodial rights of the child if the child is below the age of 5 years. In case the girl is married, the custodial rights are given to the husband of the girl. While the law is enacted, the interpretation of the same is also necessary. In the case of Kusa Parida And Anr. vs Baishnab Malik And Ors, the Court held that: “legislature. the word `after’ does not necessarily mean after the death of the father, on the contrary, it depicts an intent so as to ascribe the meaning thereto as `in the absence of `- be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise and it is only in the event of such a meaning being ascribed to the word `after’ as used in Section 6”.
Also, in Ms. Gita Hariharan v. Reserve Bank of India, the apex court held that if the minor child is under the immediate custody of the mother who takes care of all the affairs of the minor even during the lifetime of the father, the mother would be deemed as the natural guardian of the minor child and the father, as per Section 6(a) of Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) would be considered to be ‘absent’ for the same. Moreover, it is deemed to be in the best interest of the minor if the custody of the minor child is transferred to the mother from that of the father and a fresh appeal can be filed in the court as soon as the child attains the age of five years, as the aforementioned is in the light of Section 6(a) r/w Section 13 of the Act.
Welfare of the Child:
The Courts in many cases have stated that while deciding the grant of custodial rights, the primary concern should be the welfare of the child and the decision with regard to custodial rights should be directed towards the welfare of the child.
In the case of Rosy Jacob v. Jacob A. Chakramakkal, it was held that:
“It is thus clear that the special enactment definitely states that the father is the guardian of the person of the minor until he is found unfit to be the guardian of the person of the minor. The welfare of the minor is the paramount consideration in the matter of appointing guardian for the person of a minor, and cannot be said to be in conflict with the terms of Section 19 of the Guardians and Wards Act which recognize the father as the guardian. Bearing this in mind, we proceed to consider as to who is fit and proper to be the guardian for the person of the minor children in this case”
As per the judgement in Surinder Kaur v. Harbax Singh the court held that even if the father is the natural guardian of the child before mother, welfare and interest of the child is of paramount consideration. It specified that the interpretation of “welfare” is to be in its widest sense so as to encompass all material, physical as well as mental well-being of the child.
The same was reiterated in the case of Re. v. Megrath (Infants) wherein the court held that the word “welfare” should be interpreted in the widest amplitude and not only in mercenary terms, it should also take into consideration his religious as well as moral well-being along with physical well-being of the child. The Supreme Court considered that the financial capacity should not be of sole importance as in the case of Dhanwanti Joshi v. Madhav Unde, it held that love, compassionate relations, understanding, care and correct guidance are also important for the holistic development of the child.
It was reaffirmed in the case of Ruchirkumar Gajanandbhai Suthar vs Amitaben D/O Hasmukhlal where the court held that the child below the age of 5 year cannot be looked after better than his/her mother by the father or any of his female relation no matter how compassionate and affectionate they are, the custody of the child should be granted to the mother as it is in the best interest of the minor.
Hindu Marriage Act, 1955
Section 26 of the Hindu Marriage act deals with the custody of children. The court may, from time-to-time issue decrees under the Act for the welfare of the child with respect to the maintenance, custody and education of the child, and even change the decrees passed by it in the best interest of the children. It is mandatory to dispose any application pending with the court with respect to maintenance and education od the minor within 60 days, from the date of service of notice on the respondent.
Under the Muslim Law, the mother has the custodial rights on the child so long as she is not disqualified. This is called as Hazanat and the mother can have custodial rights for a period provided by the law which differs in case of son and daughter.
Son: In Shia law, the mother has the rights for custody of the son until he is weaned (completed the age of 2 years). Among Malikis, the Hazanat lasts until the son attains puberty. According to Hanafis, the mother is entitled to the custody of the child until the child attains the age of 7 years. This is the same with Shafis and Hanabalis, but these schools hold that the child would be given a choice of living with either of the parents after the completion of 7 years.
Daughter: Under all the schools of Muslim Law, the mother has the custodial rights over the daughter until she reaches the age of puberty. This is being well settled in the case of Enamul Haque v. Bibi Taimunissa and Immabandi v. Mutsadi. In addition to that in Malikis, Shafis and Hanabalis, the mother is entitled to the custody of the daughter till the daughter is married. On the other hand, under Ithana Ashari Law, the custodial rights of the mother extend until the daughter is of 7 years.
Father’s Right to Hazanat:
Father’s Right to Hazanat is observed uniformly by all the schools on two conditions:
1. If the child has completed the age to which the mother and the other female relations are entitled to.
2. In the absence of the mother or other female relations those are entitled to Hazanat.
Other male relations entitled to Hazanat:
Among Shias, in the absence of father, the grandfather would be entitled to Hazanat and in the absence of grandfather, it is not clear as whom would be given the Hazanat to. Among Hanafis, nearest brother, full brother, consanguine brother, full brother’s son, consanguine brother’s father, full brother of the father, consanguine brother of the father, father’s full brother’s son and father’s consanguine brother’s son.
Other female relations entitled to Hazanat:
Under Shia school, after the mother, the Hazanat belongs to the father and in the absence of both or if both the parents are disqualified, the custody belongs to the grandfather. It is however ambiguous as whom would be the custodial rights be given to after the grandfather. Among Malikis, maternal grandmother, maternal great grandmother, maternal aunt and grand -aunt, full sister, uterine sister, consanguine sister, paternal aunt and among Hanafis, the mother’s mother, father’s mother, uterine sister, consanguine sister, full sister’s daughter, uterine sister’s daughter, consanguine sister’s daughter, maternal aunt, paternal aunts are the females entitled to Hazanat up to the age to which the mother is entitled to.
When would the Right of Hazanat be lost by a Hazina.
All the schools of Mohammedan law states that the Hazin will no longer have right to Hizanat in the following cases:
i) by her apostasy
ii) by marrying a person not related to the child within the degrees of prohibited relationship.
iii) by her negligence, misconduct or cruelty towards the child.
iv) “by her going away and residing, during the subsistence of marriage at a distance from the father’s place of residence”.
Interests and Welfare of the Child:
Although the law is laid down, the Courts in some cases have considered the interests and welfare of child while deciding the custodial rights. In the case of S. Rehan Fatima v. Syed Badinudin Pariviz, the Court held that the interests of the child are paramount and as the child was indicating his preference by hugging his mother, the Court held the mother to be entitled of the custody of the child.
Also, in Mohammed Jameel Ahmed Ansari vs Ishrath Sajeeda And Ors, where the grandmother of the child is residing in a foreign country and while the father has taken no interest in the boy since his birth, the boy expressed his preference to stay with his grandmother and the Court have accepted his preference and entitled the custodial rights to the grandmother of the child.
As per the judgement of Ali v. Majjo Begum, it was held that
“…..but the court should also consider whether in doing so, it would be for the welfare of the minor. If evidence shows that she would not be a fit person to have the custody or that it would not be in the welfare of the child to give her the custody”
The same was held in Sharif Khan v. Muniya Khan, where the court was of the opinion that the paramount consideration should be the welfare of the child through which the decisions should be guided and not by the personal law. “Further, welfare is not only measured at the yardstick of money and physical comforts. Moral and ethical welfare is also important”
Indian Divorce Act, 1869:
Christians in India do not have any particular provision for custody under Christian Law instead the Indian Divorce Act,1869 provides for the same. This act applies for Christians. Under the act, Section 41,42,43, 44 provides the Court the powers to pass orders pertaining to custody of the child in a suit for separation/dissolution/nullity. “In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it think 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, the Court held that the any orders pertaining to the custody of the child can be varied from time to time depending upon the circumstances and passage of time if such variation would result in the welfare of the child. The Court also specified that the orders relating to custody obtained by consent can also be varied.
The court also observed that:
“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 Court ruled that the children are not to be considered as mere chattels or playthings to be shifted from one parent to other. Instead they should be considered as a separate individual where the child’s interest, development in a normal balanced manner should be prioritised so that the child shall be a useful member of the society.
Parsi Marriage and Divorce Act, 1936
This act is applicable only to Parsis. Section 49 of the Parsi Marriage and Divorce Act, 1936 mentions the provisions for custody of the child. Under the act, the Court has the powers to pass appropriate orders relating to custody and maintenance of the child.
In the case Jamshed Framroze Kalyanvala vs Mrs. Zerina Jamshed Kalyanvala, the Court held that:
“It is obvious that the welfare of the children is the paramount consideration in all matters regarding their education, maintenance and upbringing and the court in the event of a dispute will decide on the best course for the children on the above principle. We are therefore unable to accept Mr. Banerjee’s contention that the father merely because of his position as father and the earlier order of the court is entitled to have any absolute say in such matters. The position will have to be considered in the light of all the circumstances and in the context of children’s welfare”.
Also, in the case of Thrity Hoshie Dolikuka vs Hoshiam Shavaksha Dolikuka, it was held that while deciding the custody of a minor, it is true that the welfare of the minor is the paramount consideration, but while deciding the welfare of the minor, the interests and wishes of the child are to be considered.
The Guardians and Wards Act,1890:
This act is applicable to everyone irrespective of the religion. This is a secular act relating to the custody of child. Under the act, Section 17 states that the High Court should appoint a guardian for the minor who takes the custody of a child so that the resultant of which would help in the welfare of the minor. As every religion has its own personal laws, in addition to the personal laws, the Guardians and Wards Act, 1890 should also be considered harmoniously while deciding on the custodial rights of the child. This act is not in derogatory to the personal laws.
In conclusion, it can be observed that both the parents are given equal possibilities of having the custodial rights over the child. But, when the child is of a very small age, custody with the mother is much preferred by the courts as the child at that tender age requires the mother’s affection and caressing. However, it’s true that the father is also equally important and entitled, but it is generally presumed that the child’s nourishment, mental health would be much better in the case of custody with the mother.
It can also be observed that the Courts have eventually considered interpreting the principle and purpose of the law rather than the strict application of the law. The courts have considered the welfare, development and interest of the child as a paramount consideration and not the mere application of the law. There have been cases where although the father is legally entitled for the custody, the Court has not provided the custody to the father considering the welfare of the child. This makes sure the child has a healthy environment and mental health to grow up so that the child is not treated just as a matter of dispute, but as an individual whose rights and interests are to be protected.
— Gagireddy Vyshnavi, an intern at Ravindra Vikram Law Associates
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