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Custody Under Hindu, Muslim, Christian And Parsi Law’s

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Author: Mohit Agrawal & Romit Agrawal -
Students of Vth year and IV year from Aligarh Muslim University, Aligarh and Gujarat National Law University, Gandhinagar

Category: Home \ Family law Family law

Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. During divorce or marriage annulment proceedings, the issue of child custody often becomes a matter for the court to determine. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent.
In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child's housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights. Many of the religions practicing in India have their own personal laws and they have their different notion of custody.

Custody Under Hindu Law:
All the personal law matrimonial statutes make provisions for dealing with the issue of child custody. The provisions in the matrimonial Acts can, however, be invoked only when there are some proceedings pending under the Act. Hindus have an additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Apart from this, there is the Guardians and Wards Act 1890 (GWA). This is a secular law for appointment and declaration of guardians and allied matters, irrespective of caste, community or religion, though in certain matters, the court will give consideration to the personal law of the parties. The provisions of the HMGA (and other personal laws) and the GWA are complementary and not in derogation to each other, and the courts are obliged to read them together in a harmonious way. In determining the question of custody and guardianship, the paramount consideration is the welfare of the minor. The word `welfare' has to be taken in its widest sense, and must include the child's, moral as well as physical well-being, and also have regard to the ties of affection.

The English and Indian decisions are replete with such statements that : (i) the children of tender years should be committed to the custody of the mother, (ii) older boys should be in the custody of the father, and (iii) older girls in the custody of the mother. But these are judicial statements of general nature and there is no hard. and fast rule. As to the children of tender years it is now a firmly established practice that mother. should have their custody since father cannot provide that maternal affection which are essential for their proper growth. It is also now ac for proper psychological development of children of tender years ma is indispensable.

The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that custody of a child upon the age of five should ordinarily be with the mother. Under other personal laws, though it is no such statutory provision, the Indian courts have consistently taken view. The following observation of Beaumont, CJ. represents the judicial knew ......if mother is a suitable person to take charge of the child quite impossible to find an adequate substitute for her for the child.

In In Re Kamal Rudra Das J. expressed the same view vividly thus : „,
I have no doubt in my mind that the mother's lap is God's own cradle for a child of this age, and that as between father and mother, other things being equal, a child of such tender age should remain with mother.'

But a mother who neglects the infant child as she does not want to sacrifice the type of life she leading can be deprived of custody.
In respect of older children our courts take the view that the male children above the age of sixteen years and female children above the age of fourteen years, should not ordinarily be compelled to live in the custody to which they object.' However, even the wishes of the mature children will be given consideration only if they are consistent with their welfare! In Venkataramma v.. Tulsi,' the court disregarded the wishes of the children as it found these to induced by wholesale persuasion and were even tortured.

Custody to third persons. -Ordinarily, custody should be given to either of the parents. But where welfare so requires, custody may be given to a third person. In Baby v., Vijay granting custody of two minor children to maternal grandfather, the court observed that even if the father was not found unfit, custody might be given to a third person in the welfare of the child.

Custody Under Muslim Law:
The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified. This right is known as right of hizanat and it can be enforced against the father or any other person. The mother’s right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right

Son—Among the Hanafis, it is an established rule that mother’s right of hizanat over her son terminates on the latter’s completing the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son till he is weaned. Among the Malikis the mother’s right of hizanat over her son continues till the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same.

Daughter—Among the hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mother’s right of custody over her daughters continues till they are married. Under the Ithna Ashari law the mother is entitled to the custody of her daughters till they attain the age of 7. The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Mother cannot surrender her right to any person including her husband, the father of the child. Under the Shia school after the mother hizanat belongs to the father. In the absence of both the parents or on their being disqualified the grandfather is entitled to custody. Among the Malikis following females are entitled to custody in the absence of mother:
1. maternal grandmother
2. maternal great grandmother
3. maternal aunt and great aunt
4. full sister
5. uterine sister
6. consanguine sister
7. paternal aunt
Father’s right of hizanat—All the schools of Muslim law recognize father’s right of hizanat under two conditions that are:
• on the completion of the age by the child up to which mother or other females are entitled to custody.
• In the absence of mother or other females who have the right to hizanat of minor children.
• Father undoubtedly has the power of appointing a testamentary guardian and entrusting him with the custody of his children. Other male relations entitled to hizanat are:
1. nearest paternal grandfather
2. full brother
3. consanguine brother
4. full brother’s son
5. consanguine brother’s father
6. full brother of the father
7. consanguine brother of the father
8. father’s full brother’s son
9. father’s consanguine brother’s son
Among the Shias hizanat belongs to the grandfather in the absence of the father.

When Right if Hizanat may be lost by Hazina or Hazin. All the schools of Muslim law agree that a hazina should be:
i) of sound mind
ii) good moral character
iii) living at such a place where there is no risk, morally or physically to the child
iv) of such a age which would qualify her to bestow on the child the care it may need (not applicable to the mother)

The Shia law is very categorical and lays down that a person who has ceased to be muslim is not entitled to the cutody of the child. Also hazina who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of hizanat. The cardinal principal of hizanat in muslim law is the “welfare of the child”. The rights of hizanat cannot be lost on account of her poverty or want of funds to maintain the child. Also neither the father nor the mother has the right to remove the child from the matrimonial home. Hazin may be deprived of the custody of the child if he is a minor or of unsound mind. Also hazin who is leading an immoral life or who is a profligate has no right to the custody of the child.

De Facto Guardian:
A de facto guardian is a concept under which past act results in present status and a de facto guardian is a self appointed guardian. Tayabji defines a de facto guardian as “an (unauthorized) person who as a matter of fact has the custody and care of the person and/or of his property.” A de facto guardian has no power of alienation of a minor’s property and that such an alienation is void. He has no power to convey any right of interest in immovable property which the transfer can enforce against the minor. A partition of property effected by the de facto guardian is void and not binding on the minor. The period of limitation to set aside a transfer by the de facto guardian is 12 years.

Custody Under Christian Law:
Christian law per se does not have any provision for custody but the issues are well solved by the Indian Divorce Act which is applicable to all of the religions of the country. The Indian Divorce Act, 1869 contains provisions relating to custody of children. Section 41 of the said Act provides with the powers to make orders as to custody of children in suit for separation. -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:
All orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. It is unnecessary to refer to some of the decided cases relating to estoppel based on consent decrees, cited at the bar. Orders relating to custody of wards even when based on consent are liable to be varied by the Court, if the welfare of the wards demands variation. ‘The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time to time, all such orders and provision, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending’.
In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in, or removed to, a High Court, the Court may from time to time, before making its decree absolute or its decree (as the case may be), make such interim orders, and may make such provision in the decree absolute or decree and in any such suit instituted in a District Court, the Court may from time to time, before its decree is confirmed, make such interim orders, and may make such provision on such confirmation, as the High Court or District Court (as the case may be) deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the Court.

In Halsbury's Laws of England, the Law is succinctly in the following terms:-
"428. Infant's welfare paramount. In any proceedings before any Court, concerning the custody or upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the application of the income thereof, the Court must regard the welfare of the infant as the first and paramount consideration, and must not take into consideration, whether from any other point of view, the claim of the father, or any right at common law possessed by the father in respect of such custody, upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. This provision applies whether both parents are living or either or both is or are dead.

Even where the infant is a foreign national, the Court, while giving weight to the views of the foreign Court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the Courts of any other country."

In the case of Rosy Jacob v. Jacob A. Chakrammakkal, this Court has observed:
"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. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian Court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents, over them.

Custody Under Parsi Law
The issue of custody is dealt with by the Guardians and Wards Act of 1890, under which it is a well-established principle that the welfare of the child is paramount - i.e., the most important thing considered by the Guardian Court when deciding custody.

No matter what customs or personal law rules the parents’ community or sect follows regarding custody, any parent who wants custody and does not presently have custody has to seek custody from the Guardian Court. In other words, there is never any automatic transfer of a child’s custody to a particular parent.

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Factors Considered by the Courts when Granting Custody
# The welfare of the minor is very broadly defined and includes many diverse factors, notably:
# the age, sex and religion of the minor: courts take into account the personal law of the father). Thewelfare of younger children is generally regarded as being in the mother’s custody;
# the character and capacity of the proposed guardian: courts usually reject baseless allegations against mothers;
# the wishes, if any, of a deceased parent, for example specified in a will;
# any existing or previous relations of the proposed guardian with the minor’s property: courts do not look kindly on guardians seeking custody just in order to have control over the minor’s property. But if, for example, the minor’s property is shared with the mother and she is otherwise a suitable guardian, the court will regard the property relationship as an additional factor in the mother’s favour.
# the minor’s preference if she/he is old enough to form an intelligent preference, usually accepted as about 9 years old.
# whether siblings would be divided: courts prefer to keep children united and award custody of both to either the mother OR the father.
# whether either/both parents have remarried and there are step-children: Although the mother’s remarriage to someone who is not the children’s close blood-relative often means the court will not grant her custody, this rule is not strictly followed. Although the father’s remarriage usually denies him custody, sometimes the courts agree to grant him custody especially when the children’s step-mother cannot or will not have her own children.
# whether the parents live far apart: courts sometimes do not give the mother custody because she lives very far away from the father who is the ‘natural’ guardian. But in 1994 an Uzbek woman living in Uzbekistan was given custody; the judge said modern transport had shortened distances and meant that the father could depart from his home in the morning and return by evening.
# the child’s comfort, health, material, intellectual, moral and spiritual welfare: this very broad category includes the adequate and undisturbed education of the child.

However, the mere fact that the mother is economically less secure than the father, or that she suffers from ill-health or a disability is not usually reason enough to deny her custody because maintenance is the father’s responsibility irrespective of who holds custody. The mental and psychological development of the minor should not be upset by a reversal of the existing status quo: courts will take into account the likely impact of a change in guardians and the child’s reaction to this change.
(Custody Under Hindu, Muslim, Christian And Parsi Law’s)


Authors contact info - articles The  author can be reached at: romit@legalserviceindia.com

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Date of Publication: 6 Oct 2007

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