CHILD CUSTODY LAWS IN INDIA: BALANCING WELFARE AND PARENTAL RIGHTS

1. INTRODUCTION

• WHY THIS TOPIC MATTER

The dissolution of the marriage is the most painful experience for the family especially for the children. In such matters the main point of contention is the custody of the child. The one who have the physical possession of the child is said to have the custody of the child. The court considers various aspects while giving the custody of the child. In India, there are various laws regulating the issue of the child custody. These laws help to strike a balance between the welfare of the child and the right of the parents. 

• KNOW YOUR RIGHTS

The parent or guardian of the child can have the custody of the child subject to the welfare of the child. The court will always look into the welfare, safety, education, comfort and growth of the child. If the child is mature enough to understand the situation, the court will also consider the wish and desire of the child.

• AN INTRODUCTION TO CHILD CUSTODY

In India, the issue of child custody is dealt in two kinds of laws – one, the personal laws and second, the secular law. The Personal laws are – the Hindu law, the Muslim law, the Christian law and the Parsi law. The secular law of India is The Guardians and Wards Act, 1890. Even though there are different laws to govern the child custody but the sole of each of these laws is the welfare of the child.

2. LEGAL BACKGROUND

• WHAT THE LAWS  SAYS

Ordinarily, in the case where the parents live together, the custody of the child lies with both of them. The issue of the child custody arises when both the parents separate. In the case of judicial separation or the divorce, one of the parents gets the custody of the child while the other parent gets the visitation rights. The aim of giving the visitation rights is that the child can maintain the relationship with both the parents. The issue of deciding the child custody is never about establishing the supremacy of the either parent but it is about ensuring the well being of the child.  

• LEGAL PROVISION YOU SHOULD KNOW

1. The Guardians and Wards Act, 1890 – this is the secular legislation which is applicable on all irrespective of their religion. Under this Act the court appoints the guardians for the minor child.
2. The Hindu Marriage Act, 1955 – This Act is applicable on the Hindus, Buddhists, Sikhs, and Jains by religion. Section 26 of the Act deals with the custody of the child.  It allows the court to pass the interim order or permanent order deciding about the custody of the minor child.
3. The Hindu Minority and Guardianship Act, 1956 – Section 6 provides that both the father and mother of the child are the natural guardians of the child.
4. The Muslim Personal Law – The Muslim Law provides for the concept of the custody which is called ‘Hizanat’. According to it, the mother primarily has the custody of the child up to certain age of the child depending upon the gender and sect of the child. But the guardian of the child is always the father. 
5. Christian and Parsi Personal Laws – these laws are also uncodified in nature. These religions are governed by the secular law of India.

3. KEY POINTS

• YOUR LEGAL RIGHTS EXPLAINED

1. Any of the parents of the child can claim the custody of the child.
2. The right of having the custody of the child is not the absolute right.
3. The custody is not permanent. It can go to the other parent depending upon the circumstances and the welfare of the child.
4. One parent gets the custody while the other parent gets the visitation right.

• KEY PROVISIONS AT GLANCE

1. Custody is granted on the principle of the “best interest of the child”. This doctrine states that the best interest of the child is most crucial. Preference is to be given to the welfare of the child. 
2. Generally, the custody of the child below the age of 5 years remains with the mother unless she is proved to be unfit to take care of the child.
3. While granting the custody looks into various aspects – the financial stability of the parents, character of the parents, emotional attachment of the child, well being of the child etc.
4. The custody is different from guardianship. While, the custody is limited to the physical possession of the child, the guardianship is about taking decisions about the minor or his property or both.

• 5 THINGS YOU MUST KNOW

1. Welfare of the child is above the parental right to have custody.
2. If the child is mature then the child also takes into the consideration the wishes of the child.
3. The custody orders can be altered on the basis of the child’s welfare.
4. The parent’s misconduct like addiction, abuse, neglect etc can lead to denial of the custody of the child.
5. If the non-custodial child is father, then the mother can claim maintenance from the father of the child for maintaining the child.

4. REAL LIFE IMPLICATIONS

• HOW THIS AFFECT YOU

Custody laws do not just help the divorced couples but also the estranged spouses, the spouses living under the judicial separation, single parents. Even the grandparents can also have the custody of the child in certain cases.

• WHEN CAN YOU USE THIS RIGHT

The custody of the child can be claimed in the following situations:

1. Divorce
2. Judicial Separation
3. Child neglect or abuse
4. The extended family of the child can also seek the custody of the child.

• EXAMPLES  FROM REAL LIFE

1. The mother of the 3 year child was given the custody of the child after the divorce. The ‘Doctrine of the Tender Age’ was applied. It provides that the custody of the child below the age of 5 years is generally given to the mother.
2. Custody of the child was denied to the parent having the criminal history for the welfare of the child is of the paramount consideration.

5. LEGAL REMEDIES

• WHAT TO DO IF YOUR RIGHT IS VIOLATED

In case your right of having the custody of the child or visiting the child is violated by the other parent, then you may approach the court to enforce the orders or even modify the custody orders. 

• HOW TO FILE A COMPLAINT

1. If you are Hindu, Buddhist, Jain or a Sikh, you may file a petition under Section 26 of the Hindu Marriage Act, 1955.
2. If you are a Muslim you may file a petition under for the custody under the Muslim Personal Laws.
3. Prove in the court that it is for the welfare of the child to live with you.
4. If you have the visitation rights and you are denied the right to visit the child, you can file the application for the enforcement of your visitation rights.

• WHERE TO GO FOR HELP

1. Family Court
2. If there is no family court, you may go to District Court
3. In case you are unable to afford the advocate, you may go to Legal Aid Services. 
4. If the case involves the child abuse or neglect then you may also approach the Child Welfare Committees.

6. LAND MARK CASE LAWS

• Sheoli Hati v. Somnath Das (2019) – The court observed that the paramount consideration of the court in determining the question as to who should have the custody of the minor child is the welfare of the child.
• Tejaswini Gaud and Ors. V. Shekhar Jagdish Prasad Tewari and Ors. (2019) – The court held that the writ of Habeas Corpus can also be filed for seeking the custody of the child who is in the illegal detention. Such detention can be by any person who is not legally entitled to have the custody of the child.
• Geeta Hariharan v. RBI (1999) – The court held that the words ‘after him’ used under Section 6 of the Hindu Minority and Guardianship Act, 1956 does not mean the death of the father. ‘The absence of the father’ can also be interpreted from such words.

7. CONCLUSION

• KNOW THE LAW USE THE LAW

The parents have the right to have the custody of the child. But, the child’s welfare is of the paramount consideration. The law is for protecting the child and not to establish the supremacy of the either parent.

• FINAL THOUGHTS

The child custody is all about ensuring that the child has a better future, growth, development and the well being. The parents should cooperate with each other for raising the child in the safe and healthy environment.

• STAY INFORMED, STAY EMPOWERED

Awareness about the child custody laws helps the parents to act responsibly. By staying informed, you protect your rights as well as ensure the child’s welfare.

8. REFERENCES

• The Guardian and Wards Act, 1890
• The Hindu Marriage Act, 1955
• The Hindu Minority and Guardianship Act, 1956
• The Muslim Personal Law
• The Christian Personal Law
• The Parsi Personal Law
• Sheoli Hati v. Somnath Das AIR 2019 SC 3245
• Tejaswini Gaud and Ors. V. Shekhar Jagdish Prasad Tewari and Ors AIR 2019 SC 2318
• Geeta Hariharan v. RBI AIR 1999 SC 1149

Written by Jagriti Handa, student at Panjab University Swami Sarvanand Giri Regional Center, Hoshiarpur, Punjab and an intern under the Legal Vidhiya 

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Karan Chhetri

‘Social Media Head’ and ‘Case Analyst’ of Legal Vidhiya.