Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. During divorce or marriage annulment proceedings, the issue of child custody often becomes a matter for the court to determine. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent.
Child custody is one of the most emotional topics that the judiciary is supposed to deal with, almost every day. In legal terms, child custody is the process of allotting a right to one of the parent to have over the other regarding their child either during or after the decree of divorce or judicial separation is passed. The parent who gains the custody of the child is supposed to keep the child under his/her guidance and care, and the other parent, if he wants, can only approach/meet the child as per the guidelines of the court.
In general, courts tend to award physical child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child’s housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights. Many of the religions practicing in India have their own personal laws and they have their different notion of custody.’
The rules and provisions for the custody of a child depend upon the religion of the child and the parents. The custody of a child in India is governed by the personal law of the child along with the Guardians and Wards Act, 1890. The Guardians and Wards Act, 1890 applies to each and every citizen of the country. The court finds a harmonious way to combine the two and find out who would be a better guardian for the child. It is the child’s welfare and well being which is the most important aspect in providing custody of that child.
Child Custody under 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. Jains, Buddhists and the Sikhs are also included under the definition of a Hindu.
As per the Hindu Minority and Guardianship Act, 1956 the Hindu child below the age of 5 years shall be kept under the custody of the mother as till this age it is only the mother who can give proper emotional, moral as well as physical support to the child.
The custody of a boy or an unmarried girl below the age of 18 years and above the age of 5 years shall be given to the father of the child as he is considered to be the natural guardian and only after his death the custody shall be given to the mother.
In case the child is illegitimate then the custody shall be with the mother itself.
If the parents are not willing to take the custody of the child or if the court thinks that for the welfare of the child it would be better if he is not kept under the guidance of the parents then even a third person may be allotted the custody of a Hindu child. In this case usually, the grandparents be that paternal or maternal will be preferred to get the custody of that Hindu child if they are interested.
If neither the parents nor any of the close relatives of the child are initiating to take the custody of the child then the court by itself shall find an appropriate person who could take the custody of the child.
A person shall not be given the custody of a Hindu child if he has ceased to be a Hindu, that is, he has converted to any other religion and no longer remains a Hindu.
If a person has completely renounced the world, that is, he is no longer interested in the materialistic world rather he is willing to become a saint in search of emancipation of God then he shall not be given the custody of a Hindu child. For this it is important to prove that the person has in real terms emancipated the world and a mere declaration would not make the person ineligible from his right of taking the custody of the child.
A person who would not be able to take proper care of the child due to any of his wrong or unhealthy practices shall not be given the custody of a Hindu child.
GUARDIAN AND WARDS ACT:-
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’ .Section 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 act deals with the authority that the guardian has 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.
The Supreme Court of India and almost all of the High Courts have held that, in custody disputes, the concern for the best interest/welfare of the child supersedes even the statutory provisions on the subject outlined above. While the older cases under the GWA unequivocally hold that the father can be deprived of his position as the natural guardian only if he is found to be unfit for guardianship, there are many cases where the courts have made exceptions to this notion.
In a 1950 decision under the GWA, the Madras High Court awarded custody to the mother based on the welfare principle, even though the father was not found unfit to be a guardian.
HINDU ADOPTION AND MAINTENANCE ACT:-
Adoption as a legal concept was available only among the members of the Hindu community except where custom permits such adoption for any section of the polity. Only Hindus were allowed to legally adopt the children and the other communities could only act as legal guardians of the children. The religion-specific nature of adoption laws was a very retrograde step. It reinforced practices that were unjust to children and hindered the formation of a Uniform Civil Code. Justice P.N.Bhagwati in his land mark decision in 1984 on adoption said “no child can grow his full stature, outside the framework of a family.” Article 39 of the Constitution of India directs the government to make special provisions through legislation programme & approaches to ensure that the tender age of children is not abused & that even those living under extremely difficult circumstances are given facilities to develop in a healthy manner & in condition of freedom and dignity. India has the second largest child population in the world and it is estimated that there are over 32, million destitute children in one country
Section 7 of the Act states Capacity of a male Hindu to take in adoption which states that “any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.”
In the case of Ajay Bijli and Anr. v. State and Anr. ,it was contented that the applicant was the adopted son of Late KM Bijli. Thus, he must be included in the will for the proper adjudication. The court held that the applicant failed to establish that there was compliance of provisions of Act, 1956. Applicant has also failed to show that there was any adoption ceremony. Hence, there was no valid adoption.
In the case of Bholooram and Others v. Ramlal and Others the Madhya Pradesh High Court held that the plaintiff failed to establish that he was validly adopted by Ganpat and has any right in the Ganpat’s land. Similarly, if a wife has absconded to a unknown place, it cannot be construed as her death in eyes of law unless requirements of Section 107 of Evidence Act are fulfilled so long as, woman continues to be a wife in eyes of law, her consent is necessary for validity of an adoption under Section 7 of Act.
In Re Kamal Rudra Das J. expressed the same view vividly thus:
“I have no doubt in my mind that the mother’s lap is God’s own cradle for a child of this age, and that as between father and mother, other things being equal, a child of such tender age should remain with mother.” But a mother who neglects the infant child as she does not want to sacrifice the type of life she leading can be deprived of custody. In respect of older children our courts take the view that the male children above the age of sixteen years and female children above the age of fourteen years, should not ordinarily be compelled to live in the custody to which they object.’ However, even the wishes of the mature children will be given consideration only if they are consistent with their welfare”
In Venkataramma v. Tulsi the court disregarded the wishes of the children as it found these to be induced by wholesale persuasion and were even tortured.’
Custody to third persons-
Ordinarily, custody should be given to either of the parents. But where welfare so requires, custody may be given to a third person.
In ‘Baby v. Vijay ‘ granting custody of two minor children to maternal grandfather, the court observed that even if the father was not found unfit, custody might be given to a third person in the welfare of the child.’
Custody under Muslim Law:
The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified. This right is known as right of hizanat and it can be enforced against the father or any other person. The mother’s right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right”
‘Son—”Among the Hanafis, it is an established rule that mother’s right of hizanat over her son terminates on the latter’s completing the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son till he is weaned. Among the Malikis the mother’s right of hizanat over her son continues till the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same.”
Daughter- Among the hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mother’s right of custody over her daughters continues till they are married. Under the Ithna Ashari law the mother is entitled to the custody of her daughters till they attain the age of 7. The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Mother cannot surrender her right to any person including her husband, the father of the child. Under the Shia school after the mother hizanat belongs to the father. In the absence of both the parents or on their being disqualified the grandfather is entitled to custody. Among the Malikis following females are entitled to custody in the absence of mother:
1. Maternal grandmother
2. Maternal great grandmother
3. Maternal aunt and great aunt
4. Full sister
5. Uterine sister
6. Consanguine sister
7. Paternal aunt
Father’s right of hizanat- All the schools of Muslim law recognize father’s right of hizanat under two conditions that are:
• on the completion of the age by the child up to which mother or other females are entitled to custody.
• In the absence of mother or other females who have the right to hizanat of minor children.
• Father undoubtedly has the power of appointing a testamentary guardian and entrusting him with the custody of his children. Other male relations entitled to hizanat are:
1. nearest paternal grandfather
2. Full brother
3. Consanguine brother
4. Full brother’s son
5. Consanguine brother’s father
6. Full brother of the father
7. Consanguine brother of the father
8. Father’s full brother’s son
9. Father’s consanguine brother’s son
Among the Shias hizanat belongs to the grandfather in the absence of the father.”
When Right if Hizanat may be lost by Hazina or Hazin. All the schools of Muslim law agree that a hazina should be:
i) of sound mind
ii) good moral character
iii) living at such a place where there is no risk, morally or physically to the child
iv) of such a age which would qualify her to bestow on the child the care it may need (not applicable to the mother)’
The Shia law is very categorical and lays down that a person who has ceased to be muslim is not entitled to the cutody of the child. Also hazina who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of hizanat. The cardinal principal of hizanat in muslim law is the “welfare of the child”. The rights of hizanat cannot be lost on account of her poverty or want of funds to maintain the child. Also neither the father nor the mother has the right to remove the child from the matrimonial home. Hazin may be deprived of the custody of the child if he is a minor or of unsound mind. Also hazin who is leading an immoral life or who is a profligate has no right to the custody of the child.
De Facto Guardian:
A de facto guardian is a concept under which past act results in present status and a de facto guardian is a self appointed guardian. Tayabji defines a de facto guardian as “an (unauthorized) person who as a matter of fact has the custody and care of the person and/or of his property.” A de facto guardian has no power of alienation of a minor’s property and that such an alienation is void. He has no power to convey any right of interest in immovable property which the transfer can enforce against the minor. A partition of property effected by the de facto guardian is void and not binding on the minor. The period of limitation to set aside a transfer by the de facto guardian is 12 years.
Custody under Christian Law:-
Christian law per se does not have any provision for custody but the issues are well solved by the Indian Divorce Act which is applicable to all of the religions of the country. The Indian Divorce Act, 1869 contains provisions relating to custody of children. Section 41 of the said Act provides with the powers to make orders as to custody of children in suit for separation. -In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the said Court.
In the case of ‘Rosy Jacob v. Jacob A. Chakramakkal the Court held that:
All orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. It is unnecessary to refer to some of the decided cases relating to estoppel based on consent decrees, cited at the bar. Orders relating to custody of wards even when based on consent are liable to be varied by the Court, if the welfare of the wards demands variation. ‘The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time to time, all such orders and provision, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending’.
In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in, or removed to, a High Court, the Court may from time to time, before making its decree absolute or its decree (as the case may be), make such interim orders, and may make such provision in the decree absolute or decree and in any such suit instituted in a District Court, the Court may from time to time, before its decree is confirmed, make such interim orders, and may make such provision on such confirmation, as the High Court or District Court (as the case may be) deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the Court.’
Custody under Parsi Law:-
The issue of custody is dealt with by the Guardians and Wards Act of 1890, under which it is a well-established principle that the welfare of the child is paramount – i.e., the most important thing considered by the Guardian Court when deciding custody.” No matter what customs or personal law rules the parents’ community or sect follows regarding custody, any parent who wants custody and does not presently have custody has to seek custody from the Guardian Court. In other words, there is never any automatic transfer of a child’s custody to a particular parent.’
Factors Considered by the Courts when Granting Custody:-
• The welfare of the minor is very broadly defined and includes many diverse factors, notably:
• The age, sex and religion of the minor: courts take into account the personal law of the father). The welfare of younger children is generally regarded as being in the mother’s custody;
• The character and capacity of the proposed guardian: courts usually reject baseless allegations against mothers;
• The wishes, if any, of a deceased parent, for example specified in a will;
• Any existing or previous relations of the proposed guardian with the minor’s property: courts do not look kindly on guardians seeking custody just in order to have control over the minor’s property. But if, for example, the minor’s property is shared with the mother and she is otherwise a suitable guardian, the court will regard the property relationship as an additional factor in the mother’s favour.
• The minor’s preference if she/he is old enough to form an intelligent preference, usually accepted as about 9 years old.
• Whether siblings would be divided: courts prefer to keep children united and award custody of both to either the mother or the father.
• Whether either/both parents have remarried and there are step-children: Although the mother’s remarriage to someone who is not the children’s close blood-relative often means the court will not grant her custody, this rule is not strictly followed. Although the father’s remarriage usually denies him custody, sometimes the courts agree to grant him custody especially when the children’s step-mother cannot or will not be able to have her own children.
• Whether the parents live far apart: courts sometimes do not give the mother custody because she lives very far away from the father who is the ‘natural’ guardian. But in 1994 an Uzbek woman living in Uzbekistan was given custody; the judge said modern transport had shortened distances and meant that the father could depart from his home in the morning and return by evening.
• The child’s comfort, health, material, intellectual, moral and spiritual welfare: this very broad category includes the adequate and undisturbed education of the child.’
In the matrimonial proceedings the question of custody, education and maintenance of children also crop up. The courts are asked upon to decide in respect of custody of children during the pendency of trial. The question of custody of children is an important matter which affects the children and parents emotionally, economically and socially. The matrimonial courts have been empowered under the matrimonial enactments to decide such questions and pass orders relating to custody, education and maintenance of the children from time to time. Such orders can be modified, revoked or changed. The courts exercised jurisdiction over children only if it has jurisdiction in the main petition. If the matrimonial proceedings are dismissed by the court, proceedings relating to children terminate automatically. A provision or order may be made by the court for the custody, maintenance and education; of minor children before passing of a decree or in the decree itself or even if a decree has been passed. Passing of a decree in the main proceeding does not put an end to the court’s jurisdiction as it retains the power to pass orders in respect of custody, maintenance and education of the children even after passing such decree. The guiding principle for passing such orders is but approval things “just and proper” the interpretation which has been given to these words “welfare of the minor”. Though the principle of welfare of the minor is the paramount consideration but the court can also take consideration, the wishes of the children also. To ascertain the benefit of the court has to consider all other factors such as age, sex or wishes of the child. Thus, the power conferred upon the matrimonial courts is of considerable importance which has to be exercised cautiously.