Marriage, also called matrimony or wedlock, is a culturally recognized union
between people, called spouses, that establishes rights and obligations between
them, as well as between them and their children, and between them and their
in-laws. It is considered a cultural universal, but the definition of marriage
varies between cultures and religions, and over time.
Typically, it is an
institution in which interpersonal relationships, usually sexual, are
acknowledged or sanctioned. In some cultures, marriage is recommended or
considered to be compulsory before pursuing any sexual activity. A marriage
ceremony is called a wedding.
Divorce also known as dissolution of marriage, is the process of terminating a
marriage or marital union. Divorce usually entails the canceling or reorganizing
of the legal duties and responsibilities of marriage, thus dissolving the bonds
of matrimony between a married couple under the rule of law of the particular
country or state.
Divorce laws vary considerably around the world, but in most
countries, divorce requires the sanction of a court or other authority in a
legal process, which may involve issues of distribution of property, child
custody, alimony (spousal support), child visitation / access, parenting time,
child support, and division of debt.
In most countries, monogamy is required by
law, so divorce allows each former partner to marry another person. Divorce is
different from annulment, which declares the marriage null and void, with legal
separation or de jure separation (a legal process by which a married couple may
formalize a de facto separation while remaining legally married) or with de
facto separation (a process where the spouses informally stop cohabiting).
Research has found the most common reasons people give for their divorce are
lack of commitment, too much arguing, infidelity, marrying too young,
unrealistic expectations, lack of equality in the relationship, lack of
preparation for marriage, and abuse. Some couples are also faced with very
difficult situations, such as abuse, infidelity, or addictions. Many of the
common reasons people give for their divorce can fall under the umbrella of no
longer being in love.
In India, the divorce rate is less than 1 per cent. Out of 1000 marriages, only
13 result in divorce. The low divorce rate owes up to the society pressure,
arranged marriages usually take place over months between two families and not
individuals. If someone asks for divorce, they're usually shamed for going
against the societal rules and parents.
The divorce rate in Indian villages is
even lower in comparison to urban India. Even though India still boasts of that
nearly hundred percent of the marriages are a success, rapid urbanization and
awareness of various rights are now instigating the divorce rate to shoot
upwards. Empowerment of women has initiated the dissolution of marriage in urban
areas as financially educated women are now open to the option of ending the
relationship rather than to bear life-long abuses silently. The campaigns on
gender equality are now giving rise to ego clashes between the husband and wife,
especially if the wife too is the bread winner of the family.
Divorce is an extremely traumatic experience of the children of divorced
parents. Initially, the pain experienced by children is distressing as they see
the family break down and sense weakness. Divorce, in any circumstance, rips a
child's soul apart and is emotionally and sensitively offensive upon the child's
A major impact of divorce is on the parent-child relationship. The
quantity and quality of contact between children and non-custodial parents
usually fathers-tend to decrease and the relationship with the custodial
parent-usually the mother shows signs of tension. Divorce creates emotional
turmoil for the entire family, but for kids, the situation can be quite scary,
confusing, and frustrating.
Children often struggle to understand why they must
go between two homes. They may worry that if their parents can stop loving one
another that someday, their parents may stop loving them. They may worry that
the divorce is their fault. They may fear they misbehaved or they may assume
they did something wrong. They may also become quite angry about a divorce and
the changes it creates.
They may blame one parent for the dissolution of the
marriage or they may resent one or both parents for the upheaval in the family.
However, long term effects are determined by the behavior on the part of the
parents, especially with regards to child custody which determines the quality
of adjustment for children going through divorce.
Child custody is a legal term regarding guardianship which is used to describe
the legal and practical relationship between a parent or guardian and a child in
that person's care. Child custody consists of legal custody, which is the right
to make decisions about the child, and physical custody, which is the right and
duty to house, provide and care for the child. Married parents normally have
joint legal and physical custody of their children.
Decisions about child
custody typically arise in proceedings involving divorce, annulment, separation,
adoption or parental death. In most jurisdictions' child custody is determined
in accordance with the best interests of the child standard. Following
ratification of the United Nations Convention on the Rights of the Child in most
countries, terms such as parental responsibility, 'residence' and 'contact'
(also known as 'visitation', 'conservatorship' or 'parenting time' in the United
States) have superseded the concepts of 'custody' and 'access' in some member
nations. Instead of a parent having 'custody' of or 'access' to a child, a child
is now said to 'reside' or have 'contact' with a parent.
Child custody essentially means taking care and control the children after
having the parents' divorce. The custody of a child after the separation of the
parents is a socially crucial issue. Often movies, notably Kramer vs Kramer
books have quoted the amount of trauma that a child has to go through to see the
bitter process of their parents separating.
The issue of the custody of a child
arises after the completion of the divorce or the judicial separation and is one
of the most important issues on which the court must decide. When the parents
have a divorce, then the court will decide the custody and visitation rights
among the parents which is a paramount concern. There is also some other
paramount concerns, which are the child's study, religion and health care
The parent in whom the custodial right is vested is supposed to look
after the financial security, maintenance of the child with regard to proper
lifestyle, healthcare, emotional, physical and medical development. The other
parent is provided with the only right to access and meet the child. The family
courts while debating on the issue of custody, base their decision on the best
interests of the child in question.
Child custody laws are a sensitive branch of
laws, especially when both parents come up with a logical argument and within
the overall Indian societal context. Usually, the court takes the best decision
by considering the child's best interest as paramount. It means that they first
give priority to the young children's choice, what they want actually, with whom
they want to stay.
Within the modern context, child custody laws are increasingly being recognized
as a serious and relevant legal concern, especially as within India, divorce
rates are increasing year by year. Analyzing child custody laws is a continuing
concern within the legal sphere. However, a major problem identified is the lack
of adequate knowledge with regards to the topic among the Indian public.
paper is an overview and analysis of child custody laws within India in which
child custody laws and its various aspects are presented, analyzed, investigated
and discussed in order to fulfill my and the reader's prime objective of
broadening current knowledge of the given topic.
Additionally, I have another
goal, which is to educate parents who are going to potentially divorce or are
undergoing divorce procedures, so as to make the whole ordeal tolerable to
children, so as to minimize their stress and trauma, as it is undoubtedly a
difficult phase in their family life.
Historical Evolution Of Child Custody Laws In Common Law Of England And Indian Law
Traditionally at Common law, the father was considered the sole guardian of the
person and property of the child. The authority of the father in every aspect of
the child's life, including his/her conduct, education, religion and
maintenance, was considered absolute and even the courts refused to interfere
with the same.
Mothers did not have any authority over children, since mothers
did not have independent legal status; their identities being forged with that
of their husbands upon marriage. As divorce became possible and mothers began to
have independent legal existence and residence, their claim, if not right, to
have custody of the children began to be recognized by the courts. However,
despite a series of legislations - starting with the Custody of Infants Act,
1839, in the UK - that enabled the mother to claim custody over minor children,
the rights of the father continued to remain supreme.
Two developments aided in the dismantling of paternal authority over children
under English law.
First, in a number of judicial decisions, the courts claimed
the parens patriae jurisdiction - an even higher parental authority of the state
- to supersede the natural guardianship of the father and award custody
depending on what promoted the welfare of the child.
Second, through a series of
legislations, the British Parliament shifted the emphasis from paternal rights
to the welfare of the child and conferred equal legal status to the father and
the mother in determining guardianship and custody.
The Custody of Infants Act,
1873, allowed the mother to have custody of the child till the age of sixteen
and removed the restriction on petitions made by mothers who had committed
adultery. The Guardianship of Infants Act, 1886, recognized equal rights of the
mother over custody, access and appointment of testamentary guardian, and
allowed the court to appoint and remove guardians in certain circumstances.
Guardianship of Infants Act, 1925, put the claims of the mother and the father
in a custody dispute on an equal footing and provided that welfare of the infant
shall be the 'first and paramount consideration'.
Finally, the Guardianship of
Minors Act, 1973, conferred the same rights to the mother that the common law
gave to the father; the mother was allowed to exercise these rights without the
concurrence of the father. If the parents failed to reach an agreement, then the
court is authorized to decide the matter based on the principle of welfare of
In India, the Guardians and Wards Act was enacted in 1890 by the colonial state,
which continued the legacy of Common law, of the supremacy of the paternal right
in guardianship and custody of children. While Sections 7 and 17 of the Act
provided that courts should act in furtherance of the welfare of the minor,
Sections 19 and 25 of the original Act, subordinated the same to the supremacy
of the father. It is only the Hindu Minority and Guardianship Act, 1956, enacted
by the independent Indian state that provides that welfare of the minor shall be
the paramount consideration superseding all other factors.
Kinds Of Child Custody Arrangements In India
- Physical Custody
is a parent's right to have the child to reside with him or
her. Physical custody may be granted solely to one parent. It is rare for a
parent to have sole physical custody of a child, however, unless the court finds
his or her co-parent to be unfit. Parents may also share physical custody
evenly, or the child may reside with one parent the majority of the time.
child resides with one parent more often than the other, the home of the parent
the child resides with more frequently will generally be considered the child's
primary residence. This form of custody is the most prevalent method to ensure
that the child gets all the benefits of family and has the best upbringing
possible. The environment around the child is made fulfilling and enriching
while trying to not deprive the child of affection of his parents during his
- Joint Physical Custody
In cases of joint custody, the custody rights are vested in both the parents
allowing them to keep the child in turns. Joint custody, contrary to the common
belief, does not mean that the separated couple still have to share the same
roof even after the courts have ratified their divorce. The joint custody
happens to be one of the best solutions in the custody battle primarily because
of two reasons. First and foremost is the fact that no parent feels deprived.
matter the term, custody rights cannot be compared with access rights. Hence,
the grant of joint custody rights ensures that both the parents play a
significant part in the growth of the child's life. The second advantage of a
joint custody is that the child gets the affection of both the parents equally.
No matter the arrangements, the child who has gone through the separation of his
or her parents is left with a psychological scar. This arrangement allows the
child to receive the attention of both his parents equally.
- Sole Custody
In case of sole custody, the entire right regarding the custody of the child
relies on one biological parent. The other parent is completely kept away and is
not given any right over the child due to previous history of abusive behavior,
or are incapable of being beneficial to the child in some fashion.
If a parent is awarded sole custody of a child, it means that they get physical
and legal rights over the child. This means they are in charge of all of the
important decision making that pertains to the child.
These decisions include:
Sole guardianship gives the awarded party full rights to make decisions
concerning the child without consulting the other parent first. A father with
sole custody can relocate with the kids without seeking the approval of the
- And Medical Care
- Third Party Custody
In some custody situations, it is possible that the child/children will not
remain with either of their natural, biological, parents, but instead custody is
awarded to a third person Generally speaking, third-party custody occurs when
one of two options occur:
- The biological parents do not want custody of the child/children.
- The biological parents are incapable of caring for the child/children.
Occasionally, parents will agree to allow an adult (who is not either of the two
parents) to raise their child/children. Generally, if either parent changes
his/her mind later in the child's life, he/she has the option to seek custody at
Custody may be awarded to a third adult (who is not either of the two parents)
because the parents both seemed unfit to do so. Reasons that the court would
retain authority over the child/children and later award custody to a third
- Child abuse/neglect.
- Substance abuse.
- Deliberate desertion/abandonment of the child/children.
- Inability to provide an adequate income which is necessary for the
raising of a child.
Factors That Could Affect Your Child Custody Arrangement
- The Wishes of the Parents
The court does indeed take into account the wishes of each parent. Of course,
when that becomes a problem is when both parents want full custody, or have not
agreed on terms. Then, it is up to the court to decide what is best for the
children based upon the other factors that they take under consideration. Often,
if an amicable agreement, including child support, can be reached by both
parents beforehand, the court will uphold that agreement unless there is some
other factor that makes the court think that the arrangements are inappropriate.
- The Wishes of the Children
Although the court does not put as much weight on what the child wants as what
each parent does, or what the recommendations of social worker or other
professional are, the court does take into consideration the child's wishes.
Children are not always the best judge of what is best for them and if the child
wants to stay with one parent because they are more lenient or because they
spoil them, the court will likely make a different recommendation. The court
will also consider the age of the children before deciding how heavily to weight
- The Relationship Between Children & Each Parent
The court does look at the very important relationship between each parent and
each child. If one parent has been an absentee parent most of the time and the
child has developed a much stronger relationship with the other parent, then it
will likely be the absentee parent that is awarded visitation rather than
custody and must pay child support and other obligations. The court will often
use a professional social worker to determine how strong the relationship is
between parent and child in order to make the best custody choices for the child
- Mental & Physical Health of Children & Parent
If one parent is physically disabled and will have a harder time taking care of
the children, this is something that the court will look at. Although most of
the time disabled parents are as capable of taking care of their children as a
non-disabled parent, the court must look at this when deciding who will get
full-time custody, which will have partial custody or visitation, or pay child
support. This is the same - and even more so - with mental disabilities. If one
parent is mentally disabled in some way or suffers from an emotional condition,
the court may decide to award custody to the other parent instead.
- The Willingness of Parents to Work with Each Other
Each parent will be interviewed to find out just how willing they are to work
with the other parent. The court does not want to deprive children of either one
of their parents, and if awarding custody to one parent will severely restrict
the amount of time they get to spend with the other parent, this will be a
strong determining factor. The best way to avoid this problem is to make sure
that each parent realizes that the other parent has the right to see their
children as well and try to work out an amicable settlement beforehand.
- The Majority Caregiver Up Until This Point
The court will consider which parent has been providing for the child the most.
This doesn't just mean providing financially because financial support is often
done through child support. The court will consider all types of care such as
transportation, teaching, feeding and, in general, parenting. The court will
also consider factors such as the household set-up - where one parent works and
cannot spend as much time with the children as the parent who is not employed or
is only employed part-time.
- The Parent's Living Accommodations & Ability to Provide for the Child
The court will always consider the parents ability to provide for the child when
deciding custody and child support. The court will look at the living
arrangements first and foremost, to find out if the parent has room for the
children, if the home is in a safe neighborhood and if it is clean and
well-managed. Also, the court will look at where the residence of the parents
are, and how close they are to other family members, schools, and places where
the children have developed a normal routine.
- How Much of an Adjustment Will be Required
Obviously, divorce will cause some adjustments to be made but the court wants to
make as little of an impact on the child's life as possible. That's why the
court will look at how much the child will have to readjust if they live mostly
with one parent or another, or even with shared custody.
- Allegations & Actual Instances of Abuse or Neglect
The court will not only consider any actual incidents of abuse or neglect when
it comes to awarding custody, but they will consider allegations of neglect or
abuse as well. If one parent has made allegations that turned out to be false,
the court will weigh this heavily when deciding how to arrange custody.
Child Custody Laws In India
Within matters of law in modern India the applicable code of law is unequal, and
India's personal laws - on matters such as marriage, divorce, inheritance,
alimony - varies with an individual's religion (the individual has an option to
follow secular law if he/she wishes). Therefore, just like in other civil
categories of law such as marriage or divorce, child custody laws in India are
either secular or religious in nature, and this is possible due to the Indian
brand of secularism.
Secularism in India, thus, does not mean the separation of
religion from state. Instead, secularism in India means a state that supports or
participates in a neutral manner in the affairs of all religious groups. All of
this is due to the vast diversity prevalent in India not seen anywhere else in
the world. In India, the custody of a child depends upon the personal laws and
the secular Special Marriage Act, 1954 read with the secular Guardians and Wards
The law governing custody of children is closely linked with that of
guardianship. Guardianship refers to a bundle of rights and powers that an adult
has in relation to the person and property of a minor, while custody is a
narrower concept relating to the upbringing and day-to-day care and control of
the minor. The term 'custody' is not defined in any Indian family law, whether
secular or religious. The term 'guardian' is defined by the Guardians and Wards
Act, 1890 (hereinafter, GWA) as a 'person having the care of the person of a
minor or of his property or of both his person and property.' 19 Another term
used by the law is 'natural guardian,' who is the person legally presumed to be
the guardian of a minor and who is presumed to be authorized to take all
decisions on behalf of the minor. The legal difference between custody and
guardianship (or natural guardianship) can be illustrated by the following
example: under some religious personal laws, for very young children, the mother
is preferred to be the custodian, but the father always remains the natural
All the laws relevant to this section are:
I will now explain these further in detail:
- Guardians and Wards Act, 1890: This Act is a secular law regulating
questions of guardianship and custody for all children within the territory
of India, irrespective of their religion.
- Hindu Law: It is to be noted that the following two Acts
discussed under 'Hindu Law' are applicable to any person who is a Hindu,
Buddhist, Jaina or Sikh
- Hindu Minority and Guardianship Act, 1956: Classical Hindu law
did not contain principles dealing with guardianship and custody of
children. However, in modern statutory Hindu law, the Hindu Minority and
Guardianship Act provides various provisions concerning the matters of
guardianship and custody of minor Hindu children.
- Hindu Marriage Act, 1955: Section 26 of the Hindu Marriage Act authorises
courts to pass interim orders in any proceeding under the Act, with respect to
custody, maintenance and education of minor children, in consonance with their
wishes. The Section also authorises courts to revoke, suspend or vary such
interim orders passed previously.
- Islamic Law: In Islamic law, the father is the natural guardian,
but custody vests with the mother until the son reaches the age of seven and
the daughter reaches puberty. The concept of Hizanat provides that, of all persons,
the mother is the most suited to have the custody of her children up to a
certain age, both during the marriage and after its dissolution. A mother cannot
be deprived of this right unless she is disqualified because of apostasy or
misconduct and her custody is found to be unfavorable to the welfare of the
- Parsi and Christian Law: Under Section 49 of the Parsi Marriage and Divorce
Act, 1936 and Section 41 of the Divorce Act, 1869, courts are authorised to
issue interim orders for custody, maintenance and education of minor children in
any proceeding under these Acts.
- Marriages registered under Special Marriage Act, 1954: This Act
provides for a special form of marriage which can be taken advantage of by
any person in India and by all Indian nationals in foreign countries
irrespective of the faith which either party to the marriage may profess.
Couples who register their marriage under Special Marriage Act can take
resort to Section 38 of the Act for the purposes of custody of children.
Section 38 empowers the district court to pass interim orders during pendency of proceedings and make such provisions in
the decree as it may seem to it to be just and proper with respect to the
custody, maintenance and education of minor children, consistently with their
wishes wherever possible. Under this law, the orders can be passed at any
juncture of time, overriding the pending decree within a period of 60 days from
the date of service of notice.
- Guardians and Wards Act, 1890
The GWA is a secular law regulating questions of guardianship and custody for
all children within the territory of India, irrespective of their religion. It
authorizes the District Courts to appoint guardians of the person or property of
a minor, when the natural guardian as per the minor's personal law or the
testamentary guardian appointed under a Will fails to discharge his/her duties
towards the minor.
The Act is a complete code laying down the rights and
obligations of the guardians, procedure for their removal and replacement, and
remedies for misconduct by them. It is an umbrella legislation that supplements
the personal laws governing guardianship issues under every religion. Even if
the substantive law applied to a certain case is the personal law of the
parties, the procedural law applicable is what is laid down in the GWA.
Section 7 of the GWA authorizes the court to appoint a guardian for the person
or property or both of a minor, if it is satisfied that it is necessary for the
'welfare of the minor. Section 17 lays down factors to be considered by the
court when appointing guardians. Section 17(1) states that courts shall be
guided by what the personal law of the minor provides and what, in the
circumstances of the case, appears to be for the 'welfare of the minor.
17(2) clarifies that in determining what is for the welfare of the minor, courts
shall consider the age, sex and religion of the minor; the character and
capacity of the proposed guardian and how closely related the proposed guardian
is to the minor; the wishes, if any, of the deceased parents; and any existing
or previous relation of the proposed guardian with the person or property of the
minor. Section 17(3) states that if the minor is old enough to form an
intelligent opinion, the court 'may' consider his/her preference.
Section 19 of the GWA deals with cases where the court may not appoint a
guardian. Section 19(b) states that a court is not authorized to appoint a
guardian to the person of a minor, whose father or mother is alive, and who, in
the opinion of the court, is not unfit to be a guardian. The earlier Section
19(b) prevented the court from appointing a guardian in case the father of the
minor was alive. This clause was amended by the Personal Laws (Amendment) Act,
2010 and was made applicable to cases where even the mother was alive, thus
removing the preferential position of the father.
Section 25 of the GWA deals with the authority of the guardian over the custody
of the ward. Section 25(1) states that if a ward leaves or is removed from the
custody of the guardian, the court can issue an order for the ward's return, if
it is of the opinion that it is for the 'welfare of the ward' to be returned to
the custody of the guardian.
Reading the above provisions together, it can be concluded that, in appointing a
guardian to the person or property of a minor under the GWA, courts are to be
guided by concern for the welfare of the minor/ward.
This is evident from the
language of Sections 7 and 17. At the same time, the implication of Section
19(b) is that, unless the court finds the father or mother to be particularly
unfit to be a guardian, it cannot exercise its authority to appoint anyone else
as the guardian. Thus, power of the court to act in furtherance of the welfare
of the minor must defer to the authority of the parent to act as the guardian.
- Hindu law
The Hindu religion didn't recognize the concept of custody as it was considered
that it is the father who has to look after the welfare of the child and after
his death it was the mother who shall be given the custody of the child. But as
the time changed the need for a properly codified law regarding the custody of a
Hindu child was felt and for this purpose the Hindu Minority and Guardianship
Act, 1956 was passed. The custody of a Hindu child is governed by the Guardian
and Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956.
Buddhists and the Sikhs are also included under the definition of a
This domain of law is further divided into Hindu Minority and Guardianship Act,
1956 and Hindu Marriage Act, 1955
- Hindu Minority and Guardianship Act, 1956
Classical Hindu law did not contain principles dealing with guardianship and
custody of children. In the Joint Hindu Family, the Karta was responsible for
the overall control of all dependents and management of their property, and
therefore specific legal rules dealing with guardianship and custody were not
thought to be necessary.
However, in modern statutory Hindu law, the Hindu
Minority and Guardianship Act, 1956 (hereinafter, HMGA) provides that the father
is the natural guardian of a minor, and after him, it is the mother. Section
6(a) of the HMGA provides that: (1) in case of a minor boy or unmarried minor
girl, the natural guardian is the father, and 'after' him, the mother; and (2)
the custody of a minor who has not completed the age of five years shall
'ordinarily' be with the mother (emphasis added).
In Gita Hariharan v. Reserve Bank of India, the constitutional validity of
Section 6(a) was challenged as violating the guarantee of equality of sexes
under Article 14 of the Constitution of India. The Supreme Court considered the
import of the word 'after' and examined whether, as per the scheme of the
statute, the mother was disentitled from being a natural guardian during the
lifetime of the father.
The Court observed that the term 'after' must be
interpreted in light of the principle that the welfare of the minor is the
paramount consideration and the constitutional mandate of equality between men
and women. The Court held the term 'after' in Section 6(a) should not be
interpreted to mean 'after the lifetime of the father,' but rather that it
should be taken to mean 'in the absence of the father.' The Court further
specified that 'absence' could be understood as temporary or otherwise or total
apathy of the father towards the child or even inability of the father by reason
of ailment or otherwise.
Therefore, in the above specific situations, the mother could be the natural
guardian even during the lifetime of the father.
Section 13 of the HMGA declares that, in deciding the guardianship of a Hindu
minor, the welfare of the minor shall be the 'paramount consideration' and that
no person can be appointed as guardian of a Hindu minor if the court is of the
opinion that it will not be for the 'welfare' of the minor.
The following can be concluded with respect to guardianship under the HMGA.
First, the father continues to have a preferential position when it comes to
natural guardianship and the mother becomes a natural guardian only in
exceptional circumstances, as the Supreme Court explained in Gita Hariharan.
Thus, even if a mother has custody of the minor since birth and has been
exclusively responsible for the care of the minor, the father can, at any time,
claim custody on the basis of his superior guardianship rights. Gita Hariharan,
therefore, does not adequately address the original problem in Section 6(a) of
the HMGA. Second, all statutory guardianship arrangements are ultimately subject
to the principle contained in Section 13, that the welfare of the minor is the
'paramount consideration.' In response to the stronger guardianship rights of
the father, this is the only provision that a mother may use to argue for
custody/guardianship in case of a dispute.
The point of difference between the GWA and the HMGA lies in the emphasis placed
on the welfare principle. Under the GWA, parental authority supersedes the
welfare principle, while under the HMGA, the welfare principle is of paramount
consideration in determining guardianship. Thus, for deciding questions of
guardianship for Hindu children, their welfare is of paramount interest, which
will override parental authority. But for non-Hindu children, the court's
authority to intervene in furtherance of the welfare principle is subordinated
to that of the father, as the natural guardian.
- Hindu Marriage Act, 1955
Section 26 of the Hindu Marriage Act authorizes courts to pass interim orders in
any proceeding under the Act, with respect to custody, maintenance and education
of minor children, in consonance with their wishes. The Section also authorizes
courts to revoke, suspend or vary such interim orders passed previously.
provisions stipulated under Section 26 of the Hindu Marriage Act addresses the
education and the maintenance of the child only when both the parents are
followers of the Hindu religion. Under this law, the orders can be passed at any
juncture of time, overriding the pending decree within a period of 60 days from
the date of service of notice.
Some general rules of child custody applicable on Hindus are:
- The custody of a child to the mother as
it is believed that the child of such a tender age needs affection and love
which can only be provided by the mother.
- It has been a customary practice under Hindu law that the father is the
natural guardian and has the ultimate right of custody. This practice has
been codified in Section 6 of Hindu Minority and Guardianship Act, 1956 and
the custody of children in India above the age of 5 and below the age of 18
years has been the right of the father.
In Geeta Hariharan v Reserve Bank of India,
the Supreme Court held that the mother can only claim custody on the pretext of
the death of the father or in his absence. However, this rule is not applicable
if the child is illegitimate. In such a case, the right to custody is only with
- The ultimate rule for granting of child custody is that such custody
should be in the 'best interest of the child'. All the rules laid down above
can be disregarded on a strong implication of affecting the 'best interests
of the child' adversely.
- If the court believes that the parents are unwilling or unable to take
care of the child properly or in his best interest, then the court can award
the custody of such a child to the close relatives. In a case, close
relatives are also not able to dispose of the duties of the parents, then
the custody can also be given to a capable third person at the discretion of
- There are certain persons who cannot be given child custody - i. a person who
has certain bad habits that will adversely affect the proper upbringing of the
child; ii. a person who has ceased to be a Hindu or converted to any other
religion; iii. a person who has renounced the world and does not believe in any
materialistic pleasure eg. a person trying to achieve nirvana; and iv. a person
who is not able to carry out the development of the child in his best interest
(in such a case even mother of a child of a tender age can be denied custody).
- Further, the court while deciding on custody can provide the other
parent (who is not entitled to custody rights) with visitation rights
wherein the other parent can be given some time to visit the child. Such
rights can be passed by interlocutory orders and can be modified to suit the
- In Vikram Vohra v. Shalini Bhalla, the Supreme Court allowed the relocation
of the mother and the child in Australia and thereby modifying the visitation
rights. But in my opinion, in such a situation it has to be analysed that the
reason for relocating is not to adversely affect the other parent and is in the
best interest of the child. If this is not the case, then the relocating to
adversely impact the visitation rights should not be allowed.
- Islamic law
The issue of custody of a Muslim child is dealt with by the personal law and
Guardians and Wards Acts, 1890; and in case of conflict, the latter prevails.
The absence of any special religious law statute (like Hindus have) does not
adversely affect the rights of Muslim children as certain practices which are
fundamental to the custody of a Muslim child are considered by the courts while
In Islamic law, the father is the natural guardian, but custody vests with the
mother until the son reaches the age of seven and the daughter reaches puberty.
Islamic law is the earliest legal system to provide for a clear distinction
between guardianship and custody, and also for explicit recognition of the right
of the mother to custody.
The custody of a Muslim child is governed by the
Guardians and Wards Act, 1890. A separate law for the custody of a child is not
present as it is for the Hindu child. The custody of a child under the Muslim
law is known as 'hizanat', that literally means the care of the infant.
concept of Hizanat provides that, of all persons, the mother is the most suited
to have the custody of her children up to a certain age, both during the
marriage and after its dissolution. A mother cannot be deprived of this right
unless she is disqualified because of apostasy or misconduct and her custody is
found to be unfavorable to the welfare of the child. In judicial decisions under
the GWA involving Muslim children, courts have sometimes upheld the mother's
right to custody over children under Islamic law and on other occasions have
given custody to the mother out of concern for the welfare of the child.
Certain general principles adopted for custody of a Muslim child are:
Muslim law considers that the child attains majority after he has attained the
age of puberty, that is under Muslim law the terms puberty and majority are
considered to be the same.
- Under the Shia law, a mother's right to the custody of her minor children
extends until a son is two years old, and the daughter attains the age of
- Under Hanafi law, custody of a child is with the mother till he attains the
age of 7 in case of a boy; and till she attains puberty in case of a girl.
- The mother's right of custody continues even if she is divorced but in
case of remarriage after divorce process in India, the custody belongs to
- The consent of the child is taken into consideration if he is held to be
able to understand his interests. Further, such consent has to be
cross-checked so as to identify there's no element of tutoring present. In
case there is, the consent of a child has to be disregarded.
- The custody of a boy above the age of 7 and a girl who has attained
puberty is transferred to the father who likes in case of Hinduism is
considered to be the natural guardian.
The custody of a Muslim child is with the mother until he has attained the age
of 7 years for a boy and until she has attained the age of majority or puberty
in case of a girl.
The custody of a boy after he has attained the age of 7 years and the girl after
she has attained majority or puberty is with the father as under Muslim it is
the father who is considered to be the natural guardian of the child.
The other relations apart from the parents who can claim the custody of a child
The above rules are subject to certain exceptions wherein certain people are
denied custody irrespective of their gender.
- Nearest Paternal Grandfather
- Full Brother
- Consanguine Brother
- Full Brother's Son
- Consanguine Brother's Son
- Full Of The Father
- Consanguine Of The Father
- Father's Full Brother's Son
- Maternal Grandmother
- Maternal Great-Grandmother
- Maternal Aunt And Great Aunt
- Full Sister
- Consanguine Sister
- Uterine Sister
- Paternal Aunt
These rules are:
- A person who possesses a bad moral character;
- A person who has ceased to be a Muslim and thereby converted to any
- A person who does not have a sound mind;
- The doctrine of 'best interest of the child' applies here also and a
person who cannot take proper care of the child is not entitled to the
- A woman who has married within prohibited relationships.
- Parsi and Christian Law
Similar to Section 26 of the Hindu Marriage Act, 1955, under Section 49 of the
Parsi Marriage and Divorce Act, 1936 and Section 41 of the Indian Divorce Act,
1869, 40 courts are authorized to issue interim orders for custody, maintenance
and education of minor children in any proceeding under these Acts. Guardianship
for Parsi and Christian children is governed by the GWA. The child's welfare
plays a vital role as the parents have to prove themselves capable of the
responsibility of rearing the child.
The court may deny custody in case it is
not satisfied with the abilities of the parents. The custody of a Christian
child is governed by the provisions of the Indian Divorce Act, 1869 read with
the Guardians and Wards Act,1890. Sections 41, 42 and 43 of the act deals with
the powers which are conferred to the court regarding the allotment of custody
of a Christian or any other child who is not covered under the different
personal laws of the country.
Landmark Child Custody Case Laws In India
Given below are landmark child custody case laws with regards to multiple and
The paramount consideration
While taking a decision regarding custody or other issues pertaining to a child,
'welfare of the child' is of paramount consideration, Sheoli Hati v. Somnath Das,
(2019) 7 SCC 490.
It is not the welfare of the father, nor the welfare of the mother, that is the
paramount consideration for the court. It is the welfare of the minor and of the
minor alone which is the paramount consideration, Saraswatibai Shripad Vad v.
Shripad Vasanji Vad
, 1940 SCC OnLine Bom 77.
Principles in relation to custody of child
An order of custody of minor children either under the provisions of the
Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956
is required to be made by the court treating the interest and welfare of the
minor to be of paramount importance. It is not the better right of either parent
that would require adjudication while deciding their entitlement to custody.
desire of the child coupled with the availability of a conducive and appropriate
environment for proper upbringing together with the ability and means of the
parent concerned to take care of the child are some of the relevant factors that
have to be taken into account by the court while deciding the issue of custody
of a minor, Gaytri Bajaj v. Jiten Bhalla
, (2012) 12 SCC 471 .
Object and purpose of the Guardians and Wards Act, 1890 is not merely physical
custody of the minor but due protection of the rights of ward's health,
maintenance and education. In considering the question of welfare of minor, due
regard has, of course, to be given to the right of the father as natural
guardian but if the custody of the father cannot promote the welfare of the
children, he may be refused such guardianship, Rosy Jacob v. Jacob A. Chakramakkal
, (1973) 1 SCC 840.
Children are not mere chattels nor are they toys for their parents. Absolute
right of parents over the destinies and the lives of their children, in the
modern changed social conditions must yield 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, Gaurav Nagpal v. Sumedha Nagpal,
(2009) 1 SCC 42 .
Better financial resources of either of the parents or their love for the child
may be one of the relevant considerations but cannot be the sole determining
factor for the custody of the child. It is here that a heavy-duty is cast on the
court to exercise its judicial discretion judiciously in the background of all
the relevant facts and circumstances, bearing in mind the welfare of the child
as the paramount consideration, Mausami Moitra Ganguli v. Jayant Ganguli,
7 SCC 673.
The word 'welfare' used in Section 13 of the Hindu Minority and Guardianship
Act, 1956 has to be construed literally and must be taken in its widest sense.
The moral and ethical welfare of the child must also weigh with the court as
well as its physical well-being. Though the provisions of the special statutes
which govern the rights of the parents or guardians may be taken into
consideration, there is nothing which can stand in the way of the court
exercising its parens patriae jurisdiction arising in such cases, Gaurav Nagpal
v. Sumedha Nagpal,
(2009) 1 SCC 42.
Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the
father as the natural guardian of a minor son. But that provision cannot
supersede the paramount consideration as to what is conducive to the welfare of
the minor, Surinder Kaur Sandhu v. Harbax Singh Sandhu
, (1984) 3 SCC 698.
Even an interim order of custody in favour of the parent should not insulate the
minor from the parental touch and influence of the other parent which is so very
important for the healthy growth of the minor and the development of his
personality, Ruchi Majoo v. Sanjeev Majoo,
(2011) 6 SCC 479.
Before deciding the issue as to whether the custody should be given to the
mother or the father or partially to one and partially to the other, the High
- Take into account the wishes of the child concerned, and
- Assess the psychological impact, if any, on the change in custody after
obtaining the opinion of a child psychiatrist or a child welfare worker.
this must be done in addition to ascertaining the comparative material welfare
that the child/children may enjoy with either parent, Mamta v. Ashok Jagannath
, (2005) 12 SCC 452.
The principles laid down in proceedings under the Guardians and Wards Act, 1890
are equally applicable in dealing with the custody of a child under Section 26
of the Hindu Marriage Act, 1955, since in both the situations two things are
common: the first, being orders relating to custody of a growing child and
secondly, the paramount consideration of the welfare of the child.
considerations are never static nor can they be squeezed in a straitjacket.
Therefore, each case has to be dealt with on the basis of its peculiar facts, Vikram Vir Vohra v. Shalini Bhalla,
(2010) 4 SCC 409.
It is not the 'negative test' that the father is not 'unfit' or disqualified to
have custody of his son/daughter that is relevant, but the 'positive test' that
such custody would be in the welfare of the minor which is material and it is on
that basis that the court should exercise the power to grant or refuse custody
of a minor in favour of the father, the mother or any other guardian, Nil Ratan
Kundu v. Abhijit Kundu, (2008) 9 SCC 413.
Twin objectives of the 'welfare principle'
The welfare principle is aimed at serving twin objectives. In the first
instance, it is to ensure that the child grows and develops in the best
environment. The best interest of the child has been placed at the vanguard of
family/custody disputes according to the optimal growth and development of the
child and has primacy over other considerations. This right of the child is also
based on individual dignity.
The second justification behind the welfare
principle is the public interest that stands served with the optimal growth of
the children. Child-centric human rights jurisprudence that has been evolved
over a period of time is founded on the principle that public good demands
proper growth of the child, who are the future of the nation, Vivek Singh v.
, (2017) 3 SCC 231.
Considerations Governing Grant Of Custody
A court while dealing with custody cases, is neither bound by statutes nor by
strict rules of evidence or procedure nor by precedents. The court has to give
due weight to a child's ordinary comfort, contentment, health, education,
intellectual development, and favourable surroundings. But over and above
physical comforts, moral and ethical values cannot be ignored. They are equally,
or even more important, essential and indispensable considerations.
If the minor
is old enough to form an intelligent preference or judgment, the court must
consider such preference as well, though the final decision should rest with the
court as to what is conducive to the welfare of the minor, Nil Ratan Kundu v.
, (2008) 9 SCC 413.
The welfare of the child shall include various factors like ethical upbringing,
economic well being of the guardian, child's ordinary comfort, contentment,
health, education, etc., Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari
7 SCC 42.
The crucial factors which have to be kept in mind by the courts for gauging the
welfare of the children and equally for the parents can be, inter alia,
delineated, such as:
- Maturity And Judgment;
- Mental Stability;
- Ability To Provide Access To Schools;
- Moral Character;
- Ability To Provide Continuing Involvement In The Community;
- Financial Sufficiency And Last But Not The Least The Factors Involving
Relationship With The Child, As Opposed To Characteristics Of The Parent As
An Individual, Lahari Sakhamuri v. Sobhan
Kodali, (2019) 7 SCC 311.
Issues common to all child custody disputes are:
- continuity and quality of attachments
- parental alienation,
- special needs of children,
- gender issues,
- sibling relationships,
- parents' physical and mental health,
- parents' work schedules,
- parents' finances,
- styles of parenting and discipline,
- conflict resolution,
- social support systems,
- cultural and ethnic issues,
- ethics and values and religion.
Though the prevailing legal test is that of the 'best
interests of the child', the Courts have also postulated the 'least detrimental
alternative' as an alternative judicial presumption, J. Selvan v. N. Punidha
2007 SCC OnLine Mad 636.
Nature of custody orders
In a matter relating to the custody of a child, the Court must remember that it
is dealing with a very sensitive issue in considering the nature of care and
affection that a child requires in the growing stages of his or her life. That
is why custody orders are always considered interlocutory orders and by the
nature of such proceedings, custody orders cannot be made rigid and final. They
are capable of being altered and moulded keeping in mind the needs of the child,
Vikram Vir Vohra v. Shalini Bhalla,
(2010) 4 SCC 409.
Guardianship or custody orders never attain permanence or finality and can be
questioned at any time, by any person genuinely concerned for the minor child,
if the child's welfare is in peril, ABC v. State
(NCT of Delhi), (2015) 10 SCC
Estoppel not applicable to custody orders
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. Estoppel is
not applicable to such orders, Rosy Jacob v. Jacob A. Chakramakkal
, (1973) 1 SCC
Where to an application for custody of a child
Section 9 of the Guardians and Wards Act, 1890 makes a specific provision as
regards the jurisdiction of the court to entertain a claim for grant of custody
of a minor. The solitary test for determining the jurisdiction of the court
under Section 9 is the 'ordinary residence' of the minor. The expression used is
'where the minor ordinarily resides'.
Now whether the minor is ordinarily
residing at a given place is primarily a question of intention which in turn is
a question of fact. It may at best be a mixed question of law and fact, but
unless the jurisdictional facts are admitted it can never be a pure question of
law, capable of being answered without an inquiry into the factual aspects of
the controversy, Ruchi Majoo v. Sanjeev Majoo
, (2011) 6 SCC 479 .
Interim custody / Temporary custody
Section 12 of the Guardians and Wards Act, 1890, empowers the Court to make
orders for temporary custody and protection of the person or property of the
While deciding the question of interim custody, the court must be guided by the
welfare of the children since Section 12 empowers the court to make any order as
it deems proper. The factors that must be kept in mind while determining the
question of guardianship will apply with equal force to the question of interim
custody. The strict parameters governing an interim injunction do not have full
play in matters of custody, Athar Hussain v. Syed Siraj Ahmed
, (2010) 2 SCC 654.
Examination of the child is important
Examination by the court of the child in order to ascertain his wish as to with
whom he wants to stay is important and desirable. Apart from the statutory
provision in the form of sub-section (3) of Section 17 of the Guardians and
Wards Act, 1890, such examination also helps the court in performing onerous
duty, in exercising discretionary jurisdiction and in deciding the delicate
issue of custody of a tender-aged child, Nil Ratan Kundu v. Abhijit Kundu
(2008) 9 SCC 413 .
The word 'custody' as used in Section 25 of the Guardians and Wards Act, 1890,
ought to be held to include both actual and constructive custody. It was
admitted that this interpretation could only be arrived at by some straining of
the language but it was considered that it was justified because it would serve
to carry out the intention of the Legislature in framing the Act, Mushaf Husain
v. Mohd. Jawad
, 1918 SCC OnLine Oudh JC 22.
Hindu Minority and Guardianship Act is in addition to the Guardian and Wards Act
Where no specific remedy is provided under the Hindu Minority and Guardianship
Act, 1956, Section 2 and Section 5(b) of the Act makes the provisions of the
Guardians and Wards Act applicable to such a case. Section 2 makes it clear that
the Hindu Minority and Guardianship Act, 1956 is in addition to the Guardians
and Wards Act, 1890, N. Palanisami v. A. Palaniswamy
, 1998 SCC OnLine Mad 305.
Section 6 of the Hindu Minority and Guardianship Act, 1956, provides who is the
natural guardian of a minor's person in different cases.
It enlists the natural
guardian to be as:
- In the case of a boy or an unmarried girl-the father, and after him, the
Provided that 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 -the
mother, and after her, the father.
- In the case of a married girl -the husband:
However, it is to be remembered that in this section, the expressions 'father'
and 'mother' do not include a stepfather and a stepmother.
Section 6(c) of the Hindu Minority and Guardianship Act stands impliedly
repealed by the Prohibition of Child Marriage Act, 2006. Therefore, an adult
male who marries a female child in violation of Section 3 of the Prohibition of
Child Marriage Act shall not become the natural guardian of the female child, T. Sivakumar v. State of T.N
., 2011 SCC OnLine Mad 1722.
Section 7 of the Hindu Minority and Guardianship Act, 1956, provides that
natural guardianship of the adopted son who is a minor passes, on adoption, to
the adoptive father and after him to the adoptive mother.
Custody of a Hindu child aged below 5 years
The Hindu Minority and Guardianship Act postulates that the custody of an infant
or a tender-aged child should be given to his/her mother unless the father
discloses cogent reasons that are indicative of and presage the likelihood of
the welfare and interest of the child being undermined or jeopardized if the
custody is retained by the mother.
However, it is immediately clarified that
Section 6(a) or for that matter any other provision including those contained in
the Guardians and Wards Act, does not disqualify the mother to custody of the
child even after the latter's crossing the age of five years, Roxann Sharma v.
, (2015) 8 SCC 318 .
Custody of children born outside wedlock (illegitimate child)
The preponderant position is that it is the unwed mother who possesses primary
custodial and guardianship rights with regard to her children and that the
father is not conferred with an equal position merely by virtue of his having
fathered the child, ABC v. State (NCT of Delhi),
(2015) 10 SCC 1.
The subtle difference between 'custody' and 'guardianship'
The appointment of a guardian and the custody of minors are two different
aspects. There is a subtle distinction between the expression 'Custody' and
'Guardianship'. The concept of custody is related to physical control over a
person or property. The concept of guardianship is akin to trusteeship. A
guardian is a trustee in relation to the person of whom he is so appointed. The
position of a guardian is more onerous than of a mere custodian. The custody
maybe for short duration and for a specific purpose, Ramesh Tukaram Gadhwe v.
Sumanbai Wamanrao Gondkar
, 2007 SCC OnLine Bom 975.
The question of guardianship can be independent of and distinct from that of
custody in the facts and circumstances of each case. As far as matters of
custody are concerned, the court is not bound by the bar envisaged under Section
19 of the Guardians and Wards Act, 1890, Athar Hussain v. Syed Siraj Ahmed,
(2010) 2 SCC 654.
Writ of habeas corpus for restoration of custody
In child custody matters, 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, Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari
(2019) 7 SCC 42.
In child custody matters, the ordinary remedy lies only under the Hindu Minority
and Guardianship Act or the Guardians and Wards Act as the case may be. It is
only in exceptional cases, the rights of the parties to the custody of the minor
will be determined in the exercise of extraordinary jurisdiction on a petition
for habeas corpus, Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari
, (2019) 7 SCC
Effect of remarriage on custody
Second marriage of either of the parent is a factor to be considered while
granting custodial rights, but second marriage does not disentitle him/her to
the custody of his/her children, Athar Hussain v. Syed Siraj Ahmed
, (2010) 2 SCC
A visitation order means an order establishing the visiting times for a
non-custodial parent with his or her children. Although the non-custodial parent
is responsible for the care of the child during visits, visitation differs from
custody because non-custodial parent and child do not live together as a family
unit. Visitation rights succinctly stated are distinct from custody or interim
custody orders. Essentially they enable the parent who does not have interim
custody to be able to meet the child without removing him/her from the custody
of the other parent, Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318.
Parental Alienation Syndrome
As a result of the separation of parents, often the child falls in the middle of
a contest of loyalty, which psychologists term as Parental Alienation
Syndrome. It has at least two psychological destructive effects:
- First, it puts the child squarely in the middle of a contest of loyalty, a
contest that cannot possibly be won. The child is asked to choose who is the
preferred parent. No matter whatever is the choice, the child is very likely
to end up feeling painfully guilty and confused. This is because in the
overwhelming majority of cases, what the child wants and needs is to
continue a relationship with each parent, as independent as possible from
their own conflicts.
- Second, the child is required to make a shift in assessing reality. One
parent is presented as being totally to blame for all problems, and as
someone who is devoid of any positive characteristics. Both of these
assertions represent one parent's distortions of reality.
A negative approach adopted by any parent is a significant factor weighing
against him/her while considering grant of custody of the child by the court,
Vivek Singh v. Romani Singh
, (2017) 3 SCC 231.
Child abduction and Repatriation of child
If considerable time has elapsed between the removal of a child from the native
country by any parent and steps are taken for repatriation by writ petitioner
parent, the court would prefer an elaborate inquiry into all relevant aspects
bearing on the child. Immediate restoration of the child is called for only on
an unmistakable discernment of the possibility of immediate and irremediable
harm to it and not otherwise.
Unless continuance of the child in the country to
which it has been removed, is unquestionably harmful, when judged on the
touchstone of overall perspectives, perceptions, and practicabilities, it ought
not to be dislodged and extricated from the environment and setting to which it
has got adjusted for its well-being. Irrespective of summary or elaborate
inquiry to be undertaken by a High Court, the welfare of the child must prevail
as foremost overriding consideration, while pre-existing foreign court's order
must be taken as one of the factors for deciding the question of custody.
Applicability of doctrines/principles of 'comity of courts', 'intimate contact'
and 'closest concern' would depend upon various attendant facts and
circumstances, keeping in mind primacy of welfare of the child, Prateek Gupta v.
Shilpi Gupta, (2018) 2 SCC 309.
The consistent view of the Supreme Court is that if the child has been brought
within India, the courts in India may conduct:
- summary inquiry;
- an elaborate inquiry on the question of custody.
In the case of a summary inquiry,
the court may deem it fit to order the return of the child to the country from
where he/she was removed unless such return is shown to be harmful to the child.
In other words, even in the matter of a summary inquiry, it is open to the court
to decline the relief of return of the child to the country from where he/she
was removed irrespective of a pre-existing order of return of the child by a
foreign court, Nithya Anand Raghavan v. State (NCT of Delhi)
, (2017) 8 SCC 454.
Parens Patriae jurisdiction of Indian courts
The duty of a court exercising its parens patriae jurisdiction as in cases
involving custody of minor children is all the more onerous. Simply because a
foreign court has taken a particular view on any aspect concerning the welfare
of the minor is not enough for the courts in this country to shut out an
independent consideration of the matter. Objectivity and not abject surrender is
the mantra in such cases. But it is one thing to consider the foreign judgment
to be conclusive and another to treat it as a factor or consideration that would
go into the making of a final decision, Ruchi Majoo v. Sanjeev Majoo,
(2011) 6 SCC 479.
Forum convenience and comity of courts
It is a settled legal position that the concept of forum convenience has no
place in wardship jurisdiction. The principle of comity of courts cannot be
given primacy or more weightage for deciding the matter of custody or for return
of the child to the native State. The predominant criterion of the best
interests and welfare of the minor outweighs or offsets the principle of comity
of courts, Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
Case of non-Convention countries
India is not yet a signatory to the Hague Convention of 1980. The courts in
India, within whose jurisdiction the minor has been brought must 'ordinarily'
consider the question on merits, bearing in mind the welfare of the child as of
paramount importance whilst reckoning the pre-existing order of the foreign
court if any as only one of the factors and not get fixated therewith, Nithya
Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
While examining the issue the courts in India are free to decline the relief of
return of the child brought within its jurisdiction, if it is satisfied that the
child is now settled in its new environment or if it would expose the child to
physical or psychological harm or otherwise place the child in an intolerable
position or if the child is quite mature and objects to its return, Nithya Anand
Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
Questions to be considered by the Court
In a habeas corpus petition, the High Court must examine at the threshold
whether the minor is in lawful or unlawful custody of another person. The next
question to be considered by the High Court would be whether an order passed by
the foreign court, directing the person having custody to produce the child
before it, would render the custody of the minor unlawful? Indubitably, merely
because such an order is passed by the foreign court, the custody of the minor
would not become unlawful per se, Nithya Anand Raghavan v. State (NCT of Delhi),
(2017) 8 SCC 454.
Order of foreign court must yield to welfare of child
The order of the foreign court must yield to the welfare of the child. Further,
the remedy of a writ of habeas corpus cannot be used for mere enforcement of the
directions given by the foreign court against a person within its jurisdiction
and convert that jurisdiction into that of an executing court, Nithya Anand
Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
Order of foreign court not a decisive factor
The fact that the other parent had already approached the foreign court or was
successful in getting an order from the foreign court for the production of the
child, cannot be a decisive factor. Similarly, the parent having custody of the
minor has not resorted to any substantive proceeding for custody of the child,
cannot whittle down the overarching principle of the best interests and welfare
of the child to be considered by the Court, Nithya Anand Raghavan v. State (NCT
, (2017) 8 SCC 454.
Jurisdiction of family court
Jurisdiction of Family Court qua petition for custody of minor children is
non-existent when children are foreign citizens not ordinarily residing within
the jurisdiction of the Family Court, Lahari Sakhamuri v. Sobhan Kodali,
7 SCC 311.
Duty of the court
It is the duty of courts in all countries to see that a parent doing wrong by
removing children out of the country does not gain any advantage by his or her
wrongdoing. The case where child's presence in India is the result of an illegal
act of abduction, the father who is guilty of the said act cannot claim any
advantage by stating that he has already put the child in some school in Pune,
Elizabeth Dinshaw v. Arvand M. Dinshaw
, (1987) 1 SCC 42 .
Supreme Court's Expression Of Deep Concern
Divorce and custody battles can become a quagmire and it is heart-wrenching to
see that the innocent child is the ultimate sufferer who gets caught up in the
legal and psychological battle between the parents. The eventful agreement about
custody may often be a reflection of the parents' interests, rather than the
The issue in a child custody dispute is what will become of the child,
but ordinarily, the child is not a true participant in the process. While the
best-interests principle requires that the primary focus be on the interests of
the child, the child ordinarily does not define those interests himself nor does
he have representation in the ordinary sense.
he child's psychological balance
is deeply affected through the marital disruption and adjustment for changes is
affected by the way parents continue positive relationships with their children.
To focus on the child rights in case of parental conflict is a proactive step
towards looking into this special situation demanding a specific articulation of
child rights, Lahari Sakhamuri v. Sobhan Kodali
, (2019) 7 SCC 311.
Tackling Gender Discrimination
Ms. Githa Hariharan was married to Dr. Mohan Ram and they had a son named Rishab.
She applied to the Reserve Bank of India (RBI) for bonds to be held in the name
of their minor son Rishab and had signed off as his guardian. The RBI sent back
the application to her advising her to either produce the application signed by
the father of Rishab or produce a certificate of guardianship from a competent
authority in her favor. RBI was of the opinion that Dr. Mohan was the natural
guardian of Rishab on the basis of Section 6(a) of the Hindu Minority and
Guardianship Act, 1956 (HMGA). That provision stated that the father is the
natural guardian of a Hindu minor child and the mother is the guardian 'after'
Ms. Hariharan challenged the constitutional validity of this
provision in the Supreme Court on grounds that it violated the right to equality
guaranteed under Articles 14 and 15 of the Indian Constitution. The Supreme
Court, relying on gender equality principles enshrined in the Indian
Constitution, CEDAW and UDHR, widely interpreted the word 'after' in the
provision and upheld the constitutional validity of Section 6(a) HMGA, 1956. It
held that both the father and mother are natural guardians of a minor Hindu
child, and the mother cannot be said to be natural guardian only after the death
of the father as that would not only be discriminatory but also against the
welfare of the child, which is legislative intent of HMGA, 1956.
This case is
important because it established for the first time that a natural guardian
referred to in the HMGA, 1956 can be a father or a mother: whoever is capable of
and available for taking care of the child and is deeply interested in the
welfare of the child, and that need not necessarily be the father.,Ms Githa
Hariharan and another v. Reserve Bank of India and another (AIR 1999, 2 SCC 228)
In conclusion, child custody is one of the most agonizing and difficult concerns
that the judiciary is supposed to deal with, almost every day, seemingly even
more so in recent times. The children involved at the epicenter of the tussle
describe feeling pressured emotionally. Often, they become emotionally and
physically overwhelmed and exhausted. They suffer from anxiety, depression,
academic failure, self-devaluation, and reduced self-esteem. In adolescence,
they may become substance abusers or attempt suicide.f a marriage breaks down
and ends up in separation of a couple, the persons who suffers the most is the
child or children born out of the marriage.
The Indian Law, while keeping in
mind the parents' right to the custody of a child, holds the welfare of the
child as the most important factor of consideration when deciding upon who gets
the custody of a minor child.
In India, the custody of a child depends upon the personal laws and read with
The Guardians and Wards Act, 1890. The first and foremost thing is to allot the
custody of a child to seek welfare and so if required the other personal law
rules and rituals can be set aside. Preferences are given to the parents and the
child but it is the court who takes the final decision regarding the custody of
the child. While taking a decision regarding custody or other issues pertaining
to a child, 'welfare of the child' is of paramount consideration.
The court, while exercising its parens 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 favorable 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
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 and cunningly ingrained 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, broadly, includes the following factors:
- Safe-keeping of the child
- Ethical upbringing of the child
- Good education to be imparted
- Economic well-being of the guardian
In modern India, the mother and father both have an equal right to the custody
of a child. Who gets the custody of the child, however is a question which the
court decides upon. While the statutes are conflicting when it comes to personal
laws as opposed to secular enactment in the form of The Guardian and Wards Act,
1890, the court of competent jurisdiction strives to strike a balance between
the two, all the while holding the welfare of the child as the paramount
However, just because the custody of a minor has been awarded to one parent, it
does not mean that the other parent cannot see or be in contact with the child.
The courts in India are very strict to ensure that a child gets the affection of
both the parents.
The other parent gets visitation rights, the conditions of which are determined
by the court. The consideration of paramount importance in a proceeding for the
custody of a minor is the welfare of the child. No legal right, preferential
right or any other right holds more importance than the well-being of the child.
Any court of law grants custody to that party who can assure the court that the
welfare of the child best lies with them
To summarize, the child custody laws in India are rapidly evolving and now all
of them have adopted the uniform practice of keeping the child's best interest
in mind. Further, the recommendations of the Law Commission on Reforms in
Guardianship and Custody Laws in India and the new petitions are striving for
equality among the father and mother in the custody rights. These rights are
gathering momentum in the present era and the courts have adopted a tendency of
equating mother and father equally, which is in my opinion a step in the right
direction and leads to an overall truly egalitarian society.
https://lawcommissionofindia.nic.in/reports/Report No.257 Custody