INTRODUCTION
Custody is a form of guardianship. One of the most common questions is who will obtain a child’s custody upon separation? The reasons can be diverse ranging from love to division of parental property, financial support and visiting rights among many other things. The matter of child custody is more complex than going through the journey of separation. Even the struggle of the parents to get the child custody caters to several parameters about the welfare of the child and also the pain which child suffers through the entire process is not explainable in words. The proceedings of divorce coupled with the child custody makes the case more complicated than expected in the general scenario.
In this article, Team YLCC brings you an on overview on the issue of custody post divorce vis-à-vis Indian position. Read on!
THE ‘BEST INTEREST’ DOCTRINE FOR CHILD CUSTODY
When the custody is decided in any of the cases then it follows the principle of welfare and interest of the child rather than the rights of the parents. In the words of Hon’ble Mr Justice Vinod Prasad, the person who will foster the child with love, care and affection the custody shall be handed over to the same person. In the case of Indian jurisdiction, both divorcee spouses have equal rights over the custody of the child even after divorce wherein getting the custody of the child does not amount to the win of one of the parents and loss of the other and henceforth, other parent do not lose his/her rights over the child. The annulment of marriage does not lead to the cancellation of natural guardianship of the two ex-spouses.
In this case, if the child is less than the age of majority the custody of the child only describes the physical stay of the child with any of the spouses. The primary caregiver responsible for moral, emotional, medical and educational needs goes to the custodial parent whereas the non-custodial parent retains the right to meet the child.
CHILD CUSTODY LAWS IN INDIA
Under Hindu law, custody can be granted under the provisions of the Hindu Marriage Act, Special Marriage Act or the Hindu Minority and Guardianship Act 1956. In the case of Muslim law, it is only the mother to seek custody of her child(ren) under the Right of Hizanat. In the case of Christian law, child custody is granted only after a separation decree is granted.
Thereafter, Parsi law allows for child custody under the Guardian and Wards Act 1890 and gives high importance to the welfare of the child.
VARIOUS PARAMETERS TO DECIDE CUSTODY OF THE CHILD
One of the various parameters to determine the custody of the child is the welfare of the child which is considered of paramount consideration and has been held the same in the case of Sheoli Hati v. Somnath Das[1] Furthermore, the welfare of the father or mother is not the paramount consideration of the court but it is the welfare of the child and only child is the paramount consideration of the court as held in the case of Saraswatibai Shripad Vad v. Shripad Vasanji Vad[2].
The court in the matter of custody is supposed to treat the interest and welfare of the child and have to give paramount importance both under the provisions of Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. The availability of a conducive and appropriate environment that can help the child in its proper upbringing together with the required ability and means of the parent concerned to look after are one out of some of the relevant factors which needs to be considered while deciding the custody of a minor child as held in the case of Gaytri Bajaj v. Jiten Bhalla[3]
In the case of a minor child the main object and purposes of the Guardians and Wards Act, 1890 is not only the physical custody of the minor but also the due protection of the rights of ward health, maintenance and education. The right of the father as the natural guardian of the minor child is supposed to be given due consideration by the court but if the custody of the father cannot promote the welfare of the child then the court may refuse him to give the custody and subsequently the guardianship as held in the case of Rosy Jacob v. Jacob A. Chakramakkal. [4]
One needs to also consider the fact that the children are neither mere chattels nor the toys of their parents. In furtherance to the same, the court in a case of dispute between father and mother is expected to make a just balance between the requirements of the welfare of the minor child and the rights of their respective parents over them as held in the case of Gaurav Nagpal v. Sumedha Nagpal.[5] To make the child a useful member of the society, the absolute right of parents over the destinies and lives of their children in the modern changed social conditions is mandated as they grow up in a normal balanced manner.
Other parameters to decide the custody of the child can be better financial resources of either of their parents but this criterion cannot be the sole determining factor for the custody of the child. Henceforth, keeping in light the welfare of the child the court is supposed to exercise its judicial discretion in consonance with all the facts and circumstances bearing in mind the welfare of the child as the paramount consideration as held in the case of Mausami Moitra Ganguli v. Jayant Ganguli[6]
Section 13 of the Hindu minority and Guardianship Act, 1956 has to be construed literally and must be taken in the expanded sense. The court can exercise its parens patriae jurisdiction and nothing can stand in the way of the court to apply the same although the provisions of the special statutes which governs the rights of the parents or guardians may be taken into consideration as held in the case of Gaurav Nagpal v. Sumedha Nagpal.[7]
The minor should not be insulated from the parental touch and influence of the other parent even in the case of an interim order of custody in favour of the parent as it is very important for the healthy growth of the minor and development of his personality as held in the case of Ruchi majoo v. Sanjeev Majoo[8] (The court must take into account the wishes of the child and assess the psychological impact on the child after taking into consideration and opinion of the child psychiatrist or a child welfare worker before deciding the issue as to whether the custody should be given to the mother or father or partially to one. And, all of this must be done in addition to ascertaining the comparative material welfare that the child may enjoy with either parent as held in the case of Mamta v. Ashok Jagannath Bharuka[9],
That the principles laid down in proceeding under section 26 of Hindu marriage Act and Guardians and Wards Act, 1990 are equally applicable in both the situations i.e. orders relating to custody of a growing child and paramount consideration of the child as held in the case of Vikram Vir Vohra v. Shalini Bhalla,[10]
It is not the test of the father to decide the fate of the custody of the child but it is the positive test or welfare of the minor which is material and it is on the basis that the court should exercise power to grant or refuse in favour of the father or mother as held in the case of Nil Ratan Kundu v. Abhijit Kundu.[11]
KINDS OF CHILD CUSTODY ARRANGEMENT IN INDIA
A court can grant the following kinds of custody:-
1. Physical Custody
Physical custody implies that the child will be under the custody of one of the parents and the other parent will get the visitation rights. The objective w.r.t. such custody is to give a better life in a conducive environment ensuring that the child is not deprived of the affection of the other parent during his or her formative years.
2. Joint Custody
Joint Custody is a kind of rotational form of the custody of the child wherein both parents will take care of the child turn by turn keeping in mind the welfare of the child. The rotation of child custody can be done on a daily, weekly or monthly basis depending upon the facts and circumstances of the case. These benefits the child as on one hand the child gets the attention of both the parents and on the other hand parents to get to be a part of their child’s life.
3. Legal Custody
Legal custody implies that the parents are legally entitled to take the major decisions of the child in respect to education, medical treatment, etc. In a number of cases, legal custody is granted to both the parents together but in certain cases, legal custody is granted to any of the one parents.
WHAT IS THE PROCEDURE TO KNOW THE TYPE OF CUSTODY?
Generally, parents get physical custody only if there is no specific mention of any of the custody in the order of the court. If there is any other kind of custody granted then it is mentioned in the order of the court and parents will be intimated about the same.
WHO CAN AVAIL CUSTODY OF A CHILD?
The custody can be claimed by any of the parents and if they are deceased then the same can be claimed either by a maternal or paternal grandfather or any other relatives out of love and affection towards the child. Other than that in many cases the court appoints the third person as the guardian of the child. Both in the personal law of Hindu religion as well as other secular laws about the custody of the child under the age of five is usually, awarded to the mother. In other general cases, usually the father gets the custody of the older boys and the mother of the older girls.
MAINTENANCE IN JOINT CUSTODY
There is no mechanical process of 50:50 that needs to be followed in the case of the maintenance for the joint custody of the child. It depends upon the proportion of the parents in reference to making money. And, the division of maintenance will be accordingly done on the child.
CONCLUSION
The child custody laws in India are going through an evolving phase wherein a lot of principles have been carved by the court to support the child’s best interest in any of the facts and circumstances. Moreover, the courts are thriving to bridge a gap between the father and mother in terms of the rights of child custody and these rights are gaining a lot of prominences these days as the grundnorm of the custody laws in India is the welfare of the child and nothing else.
[1] Sheoli Hati v. Somnath Das[1], (2019) 7 SCC 490
[2] Saraswatibai Shripad Vad v. Shripad Vasanji Vad 1940 SCC Online Bom 77.
[3] Gaytri Bajaj v. Jiten Bhalla CIVIL Appeal Nos. 7232-7233 of 2012
[4] Rosy Jacob v. Jcob A. Chakramakkal (1973) 1 SCC 840
[5] Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42
[6] Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673.
[7] Supra note. 5
[8] Ruchi majoo v. Sanjeev Majoo 2011) 6 SCC 479.
[9] Mamta v. Ashok Jagannath Bharuka (2005) 12 SCC 452
[10] Vikram Vir Vohra v. Shalini Bhalla (2010) 4 SCC 409
[11] Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413
YLCC would like to thank Utkarsh Sharma for his valuable contribution in this article.