While deciding on who should get custody of the child after a divorce, it is of paramount importance to keep the child’s welfare in mind.[1] This was also held in the case of Sheoli Hati v Somnath Das[2]. Often, the most affected in a divorce is the children. It can have negative impacts on the mental health of children often causing depression and other mental illnesses. Thus, not only while bringing up the child but even during and after divorce proceedings, the primary and foremost focus of the parents should be on the proper development and upbringing of the child. On “who” shall have primary custody of the children, any one party cannot be pointed out. While the economic aspect of bringing up a child, his/her education, wellness etc. rests on the father, a child needs the mother in the primary years. Both contributes equally to the proper welfare and development of the child, thus granting custody or guardianship is a delicate matter which has to be decided very carefully, keeping a lot of factors in mind.

Laws Governing Custody of Child in India

India being a country of diverse cultures and religions, no one uniform law regarding custody of child exists.
The primary statutes governing custody of children in India are:
1. The Hindu Minority and Guardianship Act, 1956
2. Hindu Marriage Act, 1955
3. Guardians and Wards Act, 1890
Christian Laws: Section 41, 42 and 43 of the Indian Divorce Act governs Christian custody battles.
Muslim Law: Sunni Law provides that mother has the custody in case of a male child upto 7 years and a girl child till she reaches puberty.
Parsi Law: Proceedings regarding custody of child is governed by the Guardians and Wards Act, 1890.

Section 4(a), of the Hindu Minority and Guardianship Act, defines a minor as a person below the age of 18 and section 4(b) defines “guardians”. As per this section, a guardian is any person who has the authority to take care of the minor himself or his property or both the minor and his property. There can be four types of guardians, namely, a natural guardian, a guardian appointed by mother or father’s in their Will, one appointed by Court and a person who is empowered to act as the guardian as per any enactment relating to any Court of Wards. Under Section 6 of the Act, the father is the natural guardian and after him is the mother.[3] But in case the child is below 5 years, the primary guardian is the mother. The Act is only applicable for Hindus including, Buddhists, Jains and Sikhs.

Under Section 26 of the Hindu Marriage Act, the court can issue interim orders and decrees with respect to custody of children arising out of divorce.
Guardians and Wards Act, 1890 is on the other hand a more secular law which applies not only to Hindus but any children irrespective of their religion.
Indian courts also have to adhere to the United Nations Convention on the Rights of Child which lays down provisions for rights of children(social, political, educational, civil and cultural) and the measures to be taken in case of their violations.

Principle of Welfare of Child

Section 13 is a very important section in the Hindu Minority and Guardianship Act as it provides that in a divorce proceeding, paramount interest has to be given to the “welfare of the child” and guardianship cannot be vested in the absence of it. The Supreme Court in Surya Vadanan v State of Tamil Nadu[4] held the same.

A simple explanation of this principle states that a child’s best interests should be a focal point in any custody battle. Custody should be vested in that parent who is most capable of securing the child’s mental as well as physical wellbeing, educational and medical needs and all the basic rights that a child is entitled to while growing up. Although this principle is quite abstract in nature, the rationale behind this is that every child needs a positive and progressive environment to grown in. In Tejaswini Gaud V Shekhar Jagdish Prasad Tiwari[5] it was held that welfare of the child includes factors like upbringing, economic well-being of the guardian, child’s comfort, contentment, health, education etc.

The Better Legal Custodian of a Child -Mother or Father?

It is important to note here that, who should be given the primary custody of the child, depends on the facts and circumstances in every case, with reference to established precedents. It is the court’s discretion under the Guardian and Wards Act, 1890, after weighing all factors to decide whether the child lives with the father or the mother. In case of a major child, they can choose their legal custodian but the final decision rests with the court. Although it is generally the mother who gets the custody on the ground that a child gets the best protection and education even in nature through their mother, in some cases, the father also gets the custody, even though cases of father becoming the legal custodian is lesser than the mother.

In Thrity Hoshie Dolikuka v H.S. Dolikuka[6], the Hon’ble Court held that a woman cannot be denied custody merely on the ground that she is working. Her employment is irrelevant in judging her ability to bring up her child. In Suresh Babu v Madhu[7], the court was of the opinion that the child’s wellbeing takes precedence even over economic well-being and when the father is busy for most of the time with his business, even being wealthier than the mother, custody of child would be vested in the mother since she would be able to give more love and attention to her. Thus, better financial capability, although a factor in deciding custody of child, is not the only or primary factor and best interest of the child will be foremost.

In some cases, however, when conditions are favorable towards the father, he is given custody. For example, when the mother has left the child since birth with the father and he has brought her up with the utmost care and love, the court will favor the father instead of the mother.

In Bijay K. Prasad v Ranjana[8], the court set aside the contention of the mother that the child stay with her during holidays on consideration of the child’s wishes to stay with father and that she was living with her father for the past 8 years.
Therefore, different factors come into play when deciding the primary custodian like, child’s relationship with parents, parent child bonding and it is finally the court’s discretion to decide custody of the child on the merits of the case. But, it is the mother who is favored most of the time.

Types of custody

There can be three types of custody of children, namely:
1. Sole Custody – When either mother or father is given the custody of the child by the court.
2. Joint Custody – When both mother and father will have legal custody of the child, although physical custody remains with only one, who will be the child’s primary caregiver. This concept has gained momentum at present and is being resorted to during divorce proceedings.
3. Third person Custody – When neither of the biological parents are given custody. Instead the court appoints a third person who will have the legal custody of the child.

Conclusion

In India, although the Guardians and Wards Act is the governing statutory law with respect to custody battles of children, it has to be read with the personal laws to give more clarity. With the growing rate of divorces in the country, the custody battles with respect to children are also increasing at an alarming rate. Needless to say, innocent children face the most brunt in a divorce proceeding between their parents. Thus, it is the most important duty of the court and of the parents to keep the interests and wellbeing of the child in mind during such proceedings, as it can have a lasting impact on the child. 

References

[1] Law Commission of India, Reforms in Guardianship and Custody Laws in India, Report No. 257 (May,2015)
[2] (2019) 7 SCC 490
[3] Romann Sharma v Arun Sharma, AIR 2015 SC 2232
[4] (2015) 2 SCC (Civil) 183 (SC)
[5] (2019) 7 SCC 42
[6] AIR 1982 SC 1276
[7] AIR 1984 (Mad.) 186
[8] (1999) 9 SCC 544
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Author: Sweta Maiti