Marriage, for a lot of people, is performed mainly for the purpose of procreation and to carry their family name or generation. But, it is not always that married partners fulfill their vows of living together for a lifetime. Some of them prefer to divorce their spouse for various reasons. And if they happen to have a child from their marriage, then the question and many times dispute arises over the custody of the child.
In India, there are many personal laws which deal with the right of custody of a child. For instance, section 26 of the Hindu Marriage Act, 1955 deals with the custody of children born to Hindu parents. Section 38 of the Special Marriage Act, 1954, and Section 49 of the Parsi Marriage and Divorce Act, 1936, is substantially the same as Section 26 of the Hindu Marriage Act. Indian Divorce Act, 1860, for Christians, deals with the same subject in Part XI, under the Title, “Custody of Children”, from Sections 41 to 44.
Custody and Guardianship:
Under Indian law, guardianship still vests with the father. He is the natural guardian of his minor children and after his death it is the mother.
Hindu Minority and Guardianship Act, 1956, under Section 6, provides that in case of legitimate children the father and after him, the mother is the natural guardian. But it is pertinent to note here that the although the custody of a minor below 5 years of age shall be with the mother, yet if the welfare of the minor requires otherwise then the custody to the mother can be denied. So, custody indeed is interpreted in a very narrow sense that is to take care and control.
In Gita Hariharan v. Reserve Bank of India, SC held that under certain circumstances, even when the father is alive, mother can act as a natural guardian. The term ‘after’ in Section 6(a) has been interpreted as ‘in absence of’ instead ‘after the lifetime’.
Section 19 of the Guardians and Wards Act, 1890 lays down that a father cannot be removed from guardianship unless he is found unfit. But recent judicial judgments show that if the welfare of the child requires that the custody should not be given to the father, he cannot get it merely because he happens to be the father.
Welfare of the child to be paramount consideration:
United Nations Convention on the Rights of Child (CRC) mentions that in all actions concerning children the best interest of the child must be the primary consideration.
Under Section 13 of the Hindu Minority and Guardianship Act, the court while appointing any person as a guardian of a Hindu Minor, the welfare of minor shall be given paramount consideration.
Section 25 of the Guardians and Wards Act, 1890 lays down that in determining custody, the welfare of children will be the main consideration before the court.
Section 17 of Guardians and Wards Act, 1890, provides for some factors that can be taken into consideration while determining the custody of the child. These are age, sex, and religion of the child, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes of the parent, and wishes of the child.
Custody to third persons mainly grandparents:
Ordinarily, custody of the child is given to the natural guardians, but it can be given to a third person if the welfare of the child so requires.
In Jawala v. Bachu, AIR 1942 Cal 215, the child was brought up by his grandparents from its very birth. The father applied for custody when the child was 8 years old. The court held that removal of the child from the custody of his grandparents might affect his health and therefore deemed it proper to retain the custody of the child with grandparents.
In Baby v. Vijai, AIR 1992 Ker 289, the court observed that even if the father was fit the custody could be given to a third person for the welfare of the child. The court thus granted the custody of two minor children to their maternal grandfather.
Niranjan Singh Huda and Anr. v. Tavinder Pal Singh Bhatia and Anr. (2008), the court here rejected the custody of child with grandparents even if the child’s father was convicted. This was because the child here failed to recognize her grandparents. So, considering the interest of the child, custody was granted to her father.
In Athar Hussain v. Syed Siraj Ahmed and Ors. (2010), the couple had 2 children. Their mother died and their father married another woman. The second mother claimed the custody of the children but the court held that under Mohammedan law the preferential rights regarding custody of minor children rests with the maternal grandparents.
In Pundalik S/o Malakappa Gubbyad v. State of Karnataka (2019), the father was accused in killing his wife and was under judicial custody for the same. The couple had 3 children and the court gave their custody to their grandparents.
While granting custody of the child, the welfare of the minor is considered by the courts. If the best interest of the child lies in granting custody to a third person, then even the natural guardian can be denied custody. There is no provision under Indian law that specifically provides for the welfare of the child as a ground for custody. But this is where the courts have played a great role and have made the welfare of the minor, the basic tool, and the top priority for granting custody.
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This article is written by Rawal Shweta and edited by Rupreet Kaur Dhariwal.