This article is written by Smriti Chawla, a law student of ll.b at Department of Laws, Panjab University Chandigarh.

Marriages in India are very sacred and considered to be once in a lifetime affair. However, in recent times, increasing number of married couples is experiencing distress and incompatibilities. Due to various socio-economic factors, there is a rapid rise in discontent marriages in India as a result of which, the rate of divorces and separations have gone up. Ever since divorce came to be recognized, the world is engaged in finding out adequate solutions to the post-divorce problems. The most vitally concerned is the problem of finding adequate solutions to matters relating to custody, education, maintenance of, and access to children. Child custody can refer to where your children will live after divorce (physical custody), or who has the legal right to make decisions about their upbringing (legal custody). Both mothers and fathers have a prominent role to play in supporting the growth and development of their children. In the social conditions that exist today, it is necessary that parents must regard as their foremost responsibility to bring up their children as healthy, happy and useful individuals of an all-round standard of education and as active builders of society. The purpose, therefore, of the law of the guardianship should be to ensure this development of the child and to safeguards its interest.

Hindu ancient text on the custody of the children

 Manu clearly ordains “Custody of children vested of all children within the realm in the king as Parens Patriae”. Then the custody/guardianship was delegated on the relation of the minor as – (i) Father’s uppermost claim (ii) Mother only after father.

 During the reign of Colonial Rule, law of guardianship/custody was developed through the Courts. It was recognized by the Court that the father is the natural guardian of his minor children, after his death the mother, no one else can be the natural guardian of minor children. Mother was only guardian of her illegitimate child.

In Chemmapat vs Onkarappa, the Madras High Court described the position relating to the custody/guardianship of minor children. The Madras High Court observed that “it is a common ground that the ancient texts of Hindu Law do not provide for the management of minor’s property beyond stating that the guardianship shall vest in the king. The custom however, recognized that the father of the Hindu, and on his death, the minor’s mother is entitled to the guardianship of minor’s state.

After the Independence, Indian Law recognises the approach of Custody of Child through English Statues, Matrimonial Causes Act, 1950, Hindu Marriage Act and Special Marriage Act. Moreover, in this respect, following English Precedents, the Indian courts have endeavoured to bring the law in consonance with social circumstances and needs of the child and the society at large. Under all statutes, orders in respect of children can be made up to the age of eighteen years. The questions relating to the custody etc. of children come before the Divorce Court. In cases coming under The Hindu Marriage Act, the Courts have held that custody of a child before the age of five years should be ordinarily given to the mother. After the age of five years the court would decide according to the consideration of welfare of the child. However, after passing of the decree of the custodial rights, parties are free to take recourse to the court for fresh orders or for modification, variation, rescinding or restoring of the old orders.

Custodial Rights vs Guardianship Rights

Indian Courts use the term ‘custody’ in the sense of the care and control of the child. However, under the Indian Law, guardianship still vests in the father. So long as he is alive, he is the guardian of his minor children, and mother has eventually no power in this respect. The debate of gender neutrality of Guardianship Rights is being held in the Court of Law.  In Geeta Hari Haran vs Reserve Bank of India, the Supreme Court has delivered a landmark judgment and rightly observed that under certain circumstances, even when the father is alive mother can act as natural guardian. The term ‘after’ used in section 6(a) has been interpreted as in absence of instead after the life time. Law Commission of India in its 83^rd report on Guardianship and wards Act 1890 and 133^rd Law Commission report on removal of discrimination against women in matters relating to guardianship and custody of minor children and elaboration of welfare principles also stress to give same an equal right to the mother in respect of their child’s’ matter. Thus, it is upon the judiciary and legislature to decide the fate of the Hindu Minority and Guardianship Act, 1956.

Consideration for Passing Orders for Child Custody

In making order for custody, etc. of children, the court takes into account various factors, such as: –

1. Welfare of the Child
2. Wishes of the Parents
3. Wishes of the Child
4. Age and Sex of the Child

• Welfare of the Child: – Section 25 of The Guardians and Wards Act, 1890 lays down that in matters relating to guardianship and custody of children, “the welfare of the minor shall of paramount consideration.” In Rajinah v. Dhanpal, Supreme Court established this section as a Judicial View as well.

The Courts also take into account other factors, like wishes of the natural parent, the wishes of the child, the conduct of parents, age and sex of the child and other factors, psychological and medical. The courts have to keep pace with modern developments and bring the law fairly up-to-date.

Section6 (a) of Hindu Minority and Guardianship Act 1956 provides that custody of minor who has not completed the age of Five years shall ordinarily be with the mother. The Act of 1956 also retains superiority of the mothers in matters of children of age less than Five years. In Mst Sakina vs Malka Ara Begum, where mother filed a suit for custody of her two children. One aged four years and other one and a half year. The Allahabad High Court observed that “welfare of the children required that they should be in the custody of the mother.”

Moreover, in the case Chanandra Prabha vs Premnath, in which Delhi High Court awarded the custody of a child below the five years to the mother. The Delhi High Court observed “the child under five years of age needs the most tender affection, caressing hand and the company of his natural mother and neither the father nor his female relations, however close, well-meaning and affectionate towards the minor, can appropriately serve as proper substitute for the minor’s natural mother. This consistent with the role of nature and in normal circumstances deserves to be noted and acted upon.” But it does not mean that thereafter the mother cannot have the custody of child. However, if mother is not caring for the child and leading an immoral life, she can be deprived of the custody of his minor child even if the child is below five years led in famous judgement, Chakki v Ayyapan,1989.

In Vesudevan vs Vishwa Laxmi, where the Kerala High Court grant the custody of minor below the five years of age to the father not the mother, on the ground that the father is natural guardian is entitled to the custody of the child.

• Wishes of the Parents: – Wishes of Parents are to be considered but only as one of the factors bearing on the child’s welfare and if child’s welfare requires, they may be disregarded. In 1914, Fulkumari v. Budh Singh, the court observed that though the wishes of the parents were not conclusive, but still considerable weight was to be attached to them. But these would be disregarded if giving effect to them would be injurious to the child.

• Wishes of the Child: – It is statutory provision in all the Indian matrimonial statutes that court will take into account the wishes of the child if the child is grown enough to express its wishes. However, Indian Court in the case Murarilal v. Saraswati, 1925 have settled down to the view that wishes of the children is an important consideration and at what age the child is capable of expressing his intelligent preference depends upon the mental development or maturity of the child. In Venkataramma v. Tulsai, the court disregarded the wishes of the children as it found these to be induced by wholesale persuasion and were even tortured. Thus, the court of law is also of the opinion that wishes of the child is a relevant consideration but not beyond the paramountcy of welfare of the child.

• Age and Sex of the Child: – The Hindu Minority and Guardianship Act, 1956 contains a statutory provision which lays down that custody of 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 in which they object.

Ordinarily, custody should be given to either of the parents. But where welfare so requires, custody may be given to a third person; this was opined in Ramakrishan Balasubramanian v. Priya Ganesan, 2007.

Access to Children

Most of the Indian statutes do not specifically provide for access; but access is part of custody, and if the court has power to pass orders for custody, it has also the power to pass orders for access. As the main concern is the welfare and holistic development of children. Not only the natural parents access but the court has power to grant access even to a third person.

Maintenance and Education

Taking welfare of the children as the prime consideration the court takes into account many factors into consideration such factors as income of both the parents, needs of the child and the like. Ordinarily, an order of maintenance comes to an end when the child attains the age of majority but it can be continued further keeping the welfare and holistic development of child in consideration. The cases include child engaged in higher education, ill-health of child, or any special promise held out by either of the parent to continue these arrangements beyond that age. Moreover, the term maintenance also includes reasonable expenses of the marriage of the child, particularly of the daughter.

Variation of Order

The court has power to revoke, suspend or vary order of custody, etc. of children at any time subsequently to making of the order whenever the circumstances of the case required it to do so. In this regard, the court is free to take into account all those factors which it takes into consideration at the time of making of the original order, i.e., education, maintenance, economic capability etc. In every case of variation of the order, the party seeking to do so, must establish a case justifying revocation, suspension or rescinding of the order.

Way Ahead

Law should be made to achieve the child’s social, moral, ethical, economic and educational interest as well as provide the equality of status of the mother vis a vis the father. There is need to some change in the Act of 1956 and follow the recommendation of 133^rd Law Commission Report which allows the mother to have the custody of minor till the age of Twelve years and the above Act should be amended on the same pattern like Personal Law (Amendment) Bill 2010 which gave equal status to the mother in child custody cases. Children below the age of seven years should not be exposed to choose between the parents as the process itself is cruelty to the child/children.  

Moreover, judicial decisions should be based on welfare of minor child and special courts to be set up for child custody cases, so that spousal conflicts do not interfere in child matters.  On adjudication of any matter relating to children, the matrimonial court should consider the wishes of the children, parents’ financial positions, suitability of the persons who claim the custody, age and sex of the child for deciding the welfare of the child.

REFRENCES 

1. Diwan, P. (2018). Family Law. Allahabad Law Agency.
2. JAHAN, T. (2013). CUSTODY OF CHILDREN UNDER DIFFERENT LEGAL SYSTEMS: A COMPARATIVE STUDY .