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When there is a divorce between married couples, an important issue pertaining to the custody of a child arises. Child custody is a delicate and sensitive issue. The Court has to look into various factors prior to granting custody of the child to one of the parents. Factors like financial status, lifestyle, understanding with the child and the ability to fulfill the educational, social and other needs of the child play an important role. However, the primary importance has been given to the ‘welfare of the child’.
There are various types of child custody: -
Physical Custody: In such cases, the custody of the child is granted to a parent. The parent to whom custody is given is the custodial parent. The other parent may be given visitation rights
Joint Physical Custody: In such cases, both parents are granted custody rights. The child lives with both parents for an equal or decided amount of time
Sole Custody: In such cases, only one parent has custody rights. The other parent is declared unfit for the custody of the child and hence barred
Third-Party Custody: In such cases, the custody rights are not given to either of the parents. Rather, a third party is granted custody rights of the child
LAWS GOVERNING ‘CHILD CUSTODY’ IN INDIA
In India, there are various laws that govern the domain of the ‘Child Custody’. The reason being, diverse religious and secular laws are in operation. Following are the legislations relating to the ‘Child Custody’: -
Guardians and Wards Act, 1890(1)
It is the secular law governing child custody. The Act is applicable irrespective of the religion of the child or parents of the child. The Act provides for appointing a guardian for the person and property of the minor child. There is also a provision contained for the joint guardians. As per Section 17 of the Act, the court must be guided by the welfare of the minor.
Hindu Minority and Guardianship Act, 1956(2)
The Act is applicable only to the Hindus. Under the Act, classes of natural guardians of a Hindu minor are enumerated. Mother is the natural guardian of a child till he is of 5 years. After that, the guardian of a son and unmarried daughter is father and mother. The guardian is in respect to the person and the property of the minor. But the guardian requires the permission of the court for certain acts like sale, gift, mortgage, etc. of the property in the name of a minor.
Hindu Marriage Act, 1955(3)
Section 26 of the Act empowers the court to pass interim orders, judgments for the custody, maintenance and education of the child during the proceedings under the Act.
The Muslim law grants custody of the child to the mother only. The custody can be taken away if she is found guilty of misconduct. Father is given custody only in the absence of the mother.
The provisions relating to the custody are governed as per the Indian Divorce Act, 1869. Section 41, 42 and 43 are relevant, you can apply for divorce and they grant power to the court for passing an order in relation to maintenance, custody, and education of the child.
WHAT ARE THE LANDMARK JUDGMENTS ON CHILD CUSTODY UNDER HINDU LAW?
The custody of children being a delicate issue to deal with depends upon the facts and circumstances of each case. The court has to ensure the welfare of the child while determining the custody rights of the parents. Following are cases in relation to the custody of the children: -
1. Case - Rosy Jacob vs. Jacob Achakramakka, (1973) 1 SCC 840(4)
It was held in this case by the Supreme Court that the children are not chattels or playthings of their parents. The parents of the children do not have an absolute right over their lives in modern society. The guardian court of the child must ensure there is a balance between the welfare of the child and the rights of the parents over their children.
2. Case - Mausami Moitra Ganguli vs. Jayant Ganguli, 2008 (4) RCR (Civil) 551 (SC)
It was held in this case by the Supreme Court that the paramount consideration is the welfare of the child. The question involved in the case was regarding the custody of the 10-year-old minor child. The court remarked that the welfare of the child is more important than the statutory provisions.
3. Case - Vikram Vir Bohra vs. Shalini Bhalla, 2010 SC 1675
In this case, the court held that the orders in regard to custody are not final in nature. They are interlocutory in nature. The court may modify the order in accordance with to change in the needs of the child.
4. Case -Rajendra Kumar Mishra vs. Richa, AIR 2005 All 379
In this case, the husband was unemployed and the wife was employed and drew a salary of Rs. 19600/- each month. Mother was in a better position to make arrangements for the education, upbringing, and health of the child. Thus, the court awarded custody of the child in favour of the mother.
5. Case – Roxann Sharma vs. Arun Sharma, (2015) 8 SCC 318
It was held in the case that as per Section 6 of the Hindu Minority and Guardianship Act, 1956, the custody of the child below five years of age must be given to the mother. The custody may be given to the father if he discloses certain reasons which indicate that the welfare of the child will be undermined if custody is given to the mother. In the instant case, the High Court had granted custody to the father of the child. In Appeal, the Supreme Court set aside the order and awarded custody to the mother as no reasons were shown to indicate she was unfit.
6. Case – Keshav R. Thakur vs. Suchhibai, (2005) 9 SCC 424
In this case, the father of the boy had died when he was 6 years old. Mother of boy appealed before the court for custody of the boy. The boy had been living for 10 years with his grandparents. Court held that custody cannot be granted to the mother at this stage because the boy had been living for a long time with the grandparents. The court granted visitation rights to the mother.
7. Case - Gyatri Bajaj vs. Jiten Bhalla, (2012) 12 SCC 471
In this case, the children did not want to go with their mother; they even refused to meet her. The court held that desire and welfare of the child were of supreme importance and hence denial of rights to the mother was justified.
8. Case - Sheila B. Das Vs P. R. Sugasree, 2006 (1) RCR (Civil) 758 (SC)
In the case, sec. 6, Hindu Minority and Guardianship Act, 1956, the custody of minor girl child was in question. The court found that after obtaining the custody of the minor child, the father does not appear to have neglected the minor and have looked after all her needs. Court also found that the girl was happy in his company and performed well in the school. Father was financially stable and not disqualified in any manner and hence, to ensure the best interest of the child the court awarded custody in favour of the father.
9. Case- Shaleen Kabra vs. Shiwani Kabra, 2012 (2) RCR (Civil) 974 (SC)(5)
In this case, the question involved was the custody of two brothers. The lower court had granted the custody of elder son to the father and that of the younger son to the mother. The Supreme Court observed that it was not proper to separate the brothers. Since the brothers were close to each other, the court decided that custody of both will be given to the father and visitation rights were given to the mother.
Case - Meenakshi Khandelwal v. Shailesh Khandelwal
Special Leave Petition (C) No. 8160 of 2011
Judges - P. Sathasivam & J. Chelameswar,
Date. of decision: - 04.05.2012
The petitioner and the respondent-husband and wife divorced each other. The family court granted custody in favour of the mother of the child. Thereafter in appeal, High Court granted visitation rights to the mother and the rights of custody to the father. Then, Appeal has been filed by the mother before the Supreme Court.
In order to determine, the Court called all the parties i.e. father, mother and the child to the chambers. Upon asking, the child wished to stay with the father. The court directed parents to bring the child on various dates to the mediation center. The mediation center was directed to observe the behavior of the child with her parents and submit a report to the court.
WHAT WAS HELD IN THE CASE OF 'NITHYA ANAND RAGHAVAN V. STATE OF DELHI & ANR, SUPREME COURT, 2017?
Case - Nithya Anand Raghavan vs. State of NCT of Delhi and Anr.
Appeal No. 972 of 2017
Judges: - Dipak Misra, A.M. Khanwilkar and Mohan M. Shantanagoudar.
Date of decision: 03.07.2017
Husband and wife lived in the U.K. Due to a matrimonial dispute, the wife returned to India along with the child. The husband obtained an ex- parte order from the foreign court for the return of the child to U.K. Thereafter writ of habeas corpus was filed by the father, terming the custody of the child with the mother illegal.
The court held that the order of the foreign court is not binding. Welfare of the child is of supreme importance and granted custody to the mother. The court held that it can decline the return of the child if:
Child settled in the new environment
The child wishes not to return
Return of the child would cause him harm
Further, the court observed that the order given by the foreign court cannot be the sole factor for consideration. Welfare of the child was of utmost importance.
Case - Mr. Preetam A. Eklaspur v. Smt. Vanishree
Writ Petition No. 52377/2018
The case of Mr. Preetam A. Eklaspur v. Smt. Vanishree is an important decision of the Karnataka High Court in regard to the custody of the child. In this case, the question involved was regarding the custody of a 10-year old minor girl. The Court opined that the welfare and wishes of the child were of supreme importance. The court awarded custody in favour of the father for the reason that the child wished to be with her father. The court observed that a 10-year child was capable of determining that with whom she wished to live.
The court determined that the following factors must be considered before selecting the proper guardian for the child:
Welfare and well- being of the child.
Comfort of the Child
The court further stated that in custody cases, it is not bound by statutes, strict rules of evidence or previous decisions. During divorce procedure, Child custody is a delicate issue and thus, the court should deal with love, affection and human touch to the same.
1. Guardians and Wards Act, 1890 - A sitemap of the Guardians and Wards Act, 1890
2. Hindu Minority and Guardianship Act, 1956 - A detailed view on the Hindu Minority and Guardianship Act, 1956
3. Hindu Marriage Act, 1955 - A sitemap of the Hindu Marriage Act, 1955
4. Rosy Jacob vs. Jacob Achakramakka, (1973) 1 SCC 840 - A detailed view on the Rosy Jacob vs. Jacob Achakramakka, (1973) 1 SCC 840
5. Shaleen Kabra vs. Shiwani Kabra, 2012 (2) RCR (Civil) 974 (SC) - A breif read of the Shaleen Kabra vs. Shiwani Kabra, 2012 (2) RCR (Civil) 974 (SC)