Post-divorce or marriage annulment proceedings, the most vital and sensitive
issues that arise are those that relate to child custody. Child custody is a
term used in family law courts to define legal guardianship of a child under the
age of 18. There are various personal laws and general laws that deal with
matters regarding child custody in India, which include the Hindu Minority and
Guardianship Act of 1956, the Indian Divorce Act of 1869, and the Guardians and
Wards Act of 1890.
This paper aims to briefly discuss the distinctions that exist with regard to
various personal laws in matters pertaining to custody of minor children. In
most cases, both parents continue to share legal child custody (guardianship)
but one parent gains physical child custody. This paper aims to briefly discuss
the distinctions that exist with regard to various personal laws in matters
pertaining to custody of minor children. In most cases, both parents continue to
share legal child custody (guardianship) but one parent gains physical child
Guardianship implies the proprietorial rights, and custody implies the
responsibility of raising a child. Legal custody includes the rights of the
parents to make decisions which affect the welfare of the child, such as medical
treatments, religious practices and insurance claims. Physical child custody
places the prime responsibility on parent for the child�s housing, educational
needs and food. In most cases, the non-custodial parent still has visitation
This paper seeks to address the various considerations taken into account by
courts while determining matters relating to custody. This paper further seeks
to analyse the inherent gender biases in the Indian legal system regarding child
Finally, this paper shall examine recent developments and trace the trend
followed by current judgements in family law which seek to eliminate this gender
The concept of custody and guardianships as enshrined in the Indian legal system
can be traced to English law, specifically the Guardians and Wards act of 1890,
from which the Hindu Guardianship and Minority Act is derived from. When divorce
was granted statutory recognition by the Matrimonial Causes Act of 1857 in
England, mothers were given independent legal recognition for the first time, as
opposed to their earlier legal status being forged with their husbands upon
Consequently, the concept of separated and divorced wives challenging the
natural guardianship of their husbands came into public discourse. Courts in
England started delivering judgements based on the principle that matrimonial
litigation is not to punish the guilty but only to ensure the welfare of the
child. This gave way to the concept of welfare of the child being paramount
consideration in custodial matters. This paper shall analyse in detail what
constitutes welfare and the inherent gender biases which exists with regards
to its interpretation.
Criteria for Determining Custody of Minor Children
The court, while exercising its parents patriae jurisdiction, takes into
consideration a variety of factors in selecting a custodian. They are bound to
give due importance to the child's ordinary comfort, contentment, health,
education, intellectual development, moral and ethical values, ties of affection
and favourable surroundings.
Furthermore, the modern development of family law has deviated from the concept
of treating children as mere chattel and has progressed towards a more inclusive
approach, giving due importance to the preferences of the child. If the minor is
old enough to form an intelligent judgement, Section 26 of the Hindu Marriage
Act, provides for the wishes of the child to be made consistent with orders in
relation to custody whenever possible.
Granted, the wishes of the child will be of little value if it transpires to be
reflective of the wishes of one of the parents which might have been assiduously
instilled into the child. Additionally, the wishes of the child are subordinate
to the primary consideration, that is the welfare of the child
The factors listed out hierarchically in order of importance are
- welfare of the child which is of the paramount consideration
- wishes of the parents
- wishes of the child
- age and sex of the child
Welfare of the Child
One of the most well-settled propositions in family law is to secure the child's
paramount welfare in matters relating to custody. However, what constitutes welfare
has had widely different interpretations. The Bombay High Court in the
case of Carla Gannon v. Shabaz Farukh Allarakhi held that the child's welfare
was the supreme consideration, irrespective of the rights and wrongs that the
parents contend. The Supreme Court has further held that the welfare of a child
is not to be measured merely by money or physical comfort, but the word welfare
must be taken in its widest sense that the tie of affection cannot be
However, numerous instances have evinced that the welfare of the child is not
the prime consideration in all matters pertaining to custody and backward
notions of stereotypical gender roles continue to pervade the Indian legal
system, which shall be explored by this paper subsequently.
Recent Developments in Custody Laws: Eliminating the Gender Bias
The Law Commission of India on 23rd May 2015, submitted its report titled
Reforms in Guardianship and Custody Laws in India
, This report draws
attention to children's welfare being paramount in any decision relating to
custody and everything else should be secondary to this consideration. In
interpreting welfare, it also lays out an unprecedented framework in India for
awarding joint custody of the child whenever it is possible citing examples of
such provisions in the applicable legal systems of various jurisdictions such as
the United States, Canada, Australia, the United Kingdom, South Africa,
Netherlands, Thailand, Singapore, and Kenya. It aims to do this by amending the
Guardianship and Wards act, which currently does not provide for joint custody.
At present. Indian custody law largely ignores the concept of shared parenting,
custodial disputes are reduced to ugly fights over sole custody of children,
which is against the interests and welfare of the child. Cases generally
conclude when the court names one of the parties as the primary guardian,
leaving the other with weekly or fortnightly visitation rights.
However, besides the commission's recommendation, the landmark case of Vishnu
Ubale vs Mrs. Archana Tushar Ubale,
gave shape to the concept of shared
custody by denying exclusive custody of an eight-year-old girl to any one
parent. Instead, Justice PL Palsingankar, on consultation with parenting experts
presented a detailed shared parenting plan for the child's upbringing. It
eliminated the need for a primary guardian giving both parents equal rights over
the custody of their child.
In addition to this, taking into consideration the financial stability of both
parents, the court ordered that the couple to share not only the child's custody
but also her expenses. To quote exactly the views expressed by the court The
husband did not want any contribution from the wife for maintenance [but as]
both are working and earning, both should contribute to the upbringing of their
daughter. Thus acknowledging the capabilities of a mother to provide for her
child and according her position in par with the father.
The Law Commission report aims to further the progressive outlook by seeking to
eliminate the bias towards fathers from two pieces of legislature, the Hindu
Minorities and Guardians Act, 1956, and the Guardians and Wards Act, 1890.
It recommends these sections, which are often used to prolong cases, be amended
to remove the superiority of one parent (father) over the other (mother), and
that both father and mother be simultaneously treated as natural guardians.
In English Law, there are explicit legislative provisions which prohibit
preferential treatment to either parent in these matters. However, there exits
an inherent gender bias in Indian laws. The natural guardian of a Hindu minor is
primarily the father, only after which is the mother.
However, in the case of a child below the age of five years, the mother is ordinarily
given guardianship. This is because of the presumption that
children of a tender age cannot manage without maternal affection. Though the
act specifies the term ordinarily
, the presumption, albeit a rebuttable
one, in favour of the mother cannot be overemphasized as it can only be deviated
from in the case of strong reasons.
Furthermore, the onus of proof lies on the father to disclose cogent reasons
that are indicative of the livelihood of the welfare and interest of the child
being undermined or jeopardized if the custody is retained by the mother. The
courts in India have consistently adopted the view laid down 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.
Existence of a Gender Bias in Muslim Personal Law
This gender bias is not exclusive to Hindu laws, but pervades all personal laws
in India. The Muslim Personal Law (Shariat) Application Act, 1937 which provides
for the application of Shariat law to matters relating to custody of children
illustrates this in the context of Islam. It provides that the foremost right to
custody of minor children belongs to the mother and she cannot be deprived of
her right so long as she is not found guilty of misconduct, this is recognized
as the right of hizanat
Hizanat establishes a rule that the mothers custodial right over the son
terminates when he completes the age of 7 years and over the daughter when she
attains puberty. The other cannot surrender her right to any person including
her husband, the father of the child.
In the case of Muhammad Tahir Vs. Raees Fatima
, the Supreme Court
disallowed the father's petition for custody of the minor children and disagreed
with his contention that he was allowed to take custody from the Mother because
the mother was illiterate, had no source of income and that she had developed an
illicit relationship with another person. The consideration of welfare of the
in custodial matters is interpreted in such a way so as to merely provide
lip service to the ideal. In reality, matters related to preconceived notions of
gender stereotypes have an unnecessary importance.
The fathers right of hizanat comes into play only after the completion of the
age by the child upto which the mother or other females are entitled to custody,
or in the absence of such females. However, after this age, the father has an
absolute right of hizanat. Courts in India are beginning to recognize the
importance of gender equality and are delivering judgements in consonance with
The Indian Law Commission, as early as 1989 recommended amending Section 6(a) of
the Hindu Minority and Guardianship act to constitute both the father and the
mother as being natural guardians jointly and severally
, having equal rights
in respect of a minor and his property. Though this never materialized into an
actuality, it is illustrative of the recognition of bias in custodial laws and
the attempts made to remedy this
However, the attempt to change section 19 of the Guardians and Wards Act, 1890
to include the mother right of proprietary guardianship so as to eliminate the
distinction between parents and reflect gender equality was witnessed by the
2010 amendment. The Law Commission report of 1989 subsequently went on to
address that the Hindu Minority and Guardianship Act, 1956 gave explicit
statutory recognition to the objectionable proposition that the father is
entitled to the custody of the minor child in preference to the mother.
Apart from the fact that there is no rational basis for according an inferior
position in the order of preference to the mother vis- a-vis the father, it
emphasized that the proposition is vulnerable to challenge on several grounds.
Firstly, disclosing a blatantly obvious anti-feminine bias. It reveals age-old
distrust for women and feeling of superiority for men and inferiority for women.
Whatever may have been the justification for the same in the past, assuming
there was some, there is no warrant for persisting with this ancient prejudice,
at least after the ushering in of the Constitution of India which proclaims the
right of women to equality and guarantees non-discrimination on the ground of
sex under the lofty principle enshrined in Article 15. In fact, clause (3) of
Article 15, by necessary implication, gives a pre-vision of beneficial
legislation geared to the special needs of women and children with a pro-women
and pro-children bias. It is indeed strange that in the face of the said
constitutional provision, the discrimination against 22 women has been tolerated
for nearly four decades.
The premise that the welfare of the child is paramount has such widely
contrasting interpretations, that it dilutes the entire concept. However, there
have been certain positive developments in this context as well, such as the
initial principle which laid down that custody should ordinarily be given to the
innocent party. This was overruled and currently there exists no bar in giving
custody to a parent that committed the matrimonial offence that caused the
Though, seemingly, it might appear like India is approaching a more
gender-neutral arena in terms of custody laws, the various aforementioned
judgements are not absolute in awarding the status of custodian to the mother
and are qualified by certain prerequisites. Such as, when it is mutually decided
between the parents that the mother will act as the guardian where. A point to
consider is that only when the father has abdicated his responsibility and has
consensually agreed to elevate the mother to the status of a natural guardian
would such a status come into effect. Thus diluting the aim of gender equality
which is sought to be achieved in such laws.
Despite the trend exhibited in recent judgements, courts are invested with a
wide discretion with regards to custody matters. They may pass any order they deem just and proper
. Thus a true change cannot be affected without altering
the mindset of the judiciary, which can only be done from the grassroots level.
- The Hindu Marriage Act, 1955, 26.
- G. Vishnudevendramma v. G. Padmaja,(2011) 4 ALL MR 5; Bholaram v.
Parwati Sahu, AIR 2011 CHH 38.
- The Guardians and Wards Act, 1890, 7,17.
- Paras Diwan, Law of Marriage and Divorce, 770 (6th ed., 2011) (Paras).
- Marriage Separation Divorce and Maintenance, 652 (5th ed., 2015).
- Law Commission of India, Removal of discrimination against Women in
matters relating to Guardianship and Custody of Minor Children and
Elaboration of the Welfare Principle, Report No. 133, 4.3 (August, 1989).