Open Access Research Article
NUANCES OF INDIA’S CHILD CUSTODY LAWS (By- Shweta Yadav & Kanishka Shankar)
Published Paper
Article Details
Nuances of India’s Child
Custody Laws
Authored By- Shweta Yadav
&
Kanishka Shankar
Abstract
Divorce is the
unfortunate result of strained relationships. The next issue that arises is
that of Child Custody. This paper aims to discuss the various issues that arise
in custody matters and the court’s approach to dealing with them. In spite of
being the most affected in a custody suit, the child has no representation in
court. Hence, judges ensure that the voices of the children are heard in the
court and given due consideration to ensure justice. Along with this, the paper
discusses Gender Inequality as fathers are given an unfair advantage under
personal laws and other legislations. Lastly, the issue of joint custody is
discussed. Various countries now prefer joint custody over sole custody as
researches show that it is in the favour of the child. However, from an Indian
perspective, this seems quite unachievable at the moment as divorces are still
looked down upon in India. Couples find it hard to maintain a civilized
relationship and wish to avoid any sort of interaction. In such scenarios,
Joint custody seems like a dream. However, to ensure that the child does not
miss on the love of any parent, while the custody is granted to one, visitation
rights are granted to the other one.
Introduction
Divorce is among the few unfortunate circumstances that
the family courts have to deal with on a daily basis. As the global divorce rate rise, India stays
at the lowest with a less than one percent divorce rate.[1] Despite the low divorce rate
custody battles are quite common. In divorce proceedings, the matter of custody
is the most complex and drenching issue which creates social, religious,
economic, educational, and legal problems in society.[2] Indian Courts believe that
the interest of the child shall supersede that of the parents in case of
custody suit. However, no fixed guidelines have been issued in this regard and
courts deal with it on case-to-case basis which is ought to bring confusion and
obscurity. The law commission report ‘Reforms in Guardianship and Custody Laws
in India’, which was submitted to the law ministry also supports the same.[3] It
also lays out a framework - “unprecedented in India”, for awarding joint
custody of the child whenever it is possible.[4]
When deciding who gets
custody of a kid, the United States likewise adheres to the same best interest
of the child principle. No priority is given to either parent based on their
gender because the law mandates that both parents be treated equally. The
"Tender Years Doctrine," which provided the mother an unfair
advantage as long as she was healthy, was in effect in the majority of U.S.
states until the 1960s or 1970s. The state now chooses between solitary custody
with visitation rights or joint/shared custody. A child is best served by
having two actively participating parents, according to research done by social
scientists and mental health specialists in the United States. [5]
On the other hand, in
the event of a divorce between parents, the United Kingdom uses a residency
system (which designates the child's primary abode) as opposed to custody. In
the UK, parents often apply for joint residency and make decisions together;
only if they are unable to do so, will the courts decide on their behalf. Even
if dual residency is thought to be the ideal option and is in the child's best
interest, there is no law or legal right that dictates this.
Usually, couples try
to resolve their differences on their own. If they are unsuccessful, they turn
to mediation. Only if that fails, do they turn to the courts.[6]
This paper attempts to
find answers to the following questions: —
1.
Is the principle of “Best Interest of Child” followed
or just theoretical in nature?
2.
Are Gender Stereotypes still steering Child Custody
matters?
3.
Need to frame not only guidelines but new
child-friendly legislation for child custody.
4.
Physical Custody to one parent and mere visitation or
no rights at all to the other parent, is against the principle of “Welfare of
Child”.
The welfare of Child or Best Interest of Child
"A child is not a
pawn in the game of litigation between parents to be tossed from one side to
another like a chattel."[7] The
parents’ rights cannot undermine that of the child.
In India, there are
two types of custody—
(1) Legal custody,
(2) Physical custody.
Legal custody means
that either parent can make decisions that affect the welfare of the child,
such as medical treatments, religious practices, and insurance claims. Physical
custody means that one parent is held primarily responsible for the child's
housing, educational needs, and food.[8]
According to Section
24 of the Guardianship and Wards Act, “A guardian of the person of a ward is
charged with the custody of the ward and must look to his support, health, and
education, and such other matters as the law to which the ward is subject
requires.” A parent is regarded as a child's natural guardian. The issue of
custody typically comes up in divorce cases. To guarantee stability in the
kid's life, physical custody is awarded to the parent who seems better prepared
to raise the child, while the other parent is given visiting privileges to
ensure that the kid receives the affection of both parents.
The law is abundantly
clear on the point that child's welfare is a paramount consideration when
deciding the issue of custody of a child.[9] The reason behind this is
that it is the child who becomes the victim in divorce cases. However, the
child does not have any representative in the court of law which might be
disadvantageous to the child. To tackle this issue, judges take the effort to
consider the preference of the child, like in the case of Meenakshi Khandelwal
v. Shailesh Khandelwal[10]
wherein their 9-year-old daughter expressed grievance against her mother and
preferred to remain in the custody of the father. Taking into consideration the
paramount interest of the child, the court forwarded the case to the mediation
center to analyze the relationship between the mother and the child before
taking any further decision. A similar decision was taken in Jitender Arora v
Sukriti Arora[11]
wherein the custody of their 15-year-old daughter was given to the father as
the girl expressed her desire to continue living with her father and not her
mother. This decision was taken after giving the mother ample time to gain
Vaishali’s (the daughter) trust. Apart from these, there have been a number of
cases where the main factor considered by the courts while granting custody has
been the child’s preference.
The legal guidelines
governing a minor child's custody are widely established. It is trite to say
that the welfare and interest of the kid, not the parent’s legal rights, should
come first and foremost when deciding whose parent, a child should be committed
to for care and control.[12] In
the case of Kala Aggarwal v. Suraj Prakash Aggarwal[13], the custody of the
children was given to the father who was residing in India despite the fact
that the US Court had granted the custody to the mother who is still residing
in the US. Both the parents and children are American Citizens but after the
children came to spend the summer vacation with their Paternal Grandparents,
they refused to go back to the US to their mother. After a number of sessions
with the kids, the judges ensured that the kids in no circumstances wanted to
back to their mother. It is necessary for the courts to consider the opinion of
kids in custody matters as only then can they do justice to young minds.
It's vital to keep in
mind that parents with temporary custody have the ability to easily poison a
child's developing mind because children are so readily misled. They must
therefore spend time with the other parent in order for them to communicate,
feel loved, and receive care.
While the parents try
to minimize the impact on the child, there will inevitably be some ambiguity
about the child's development until the new routine becomes second nature.
Children's psychological, emotional, and in some cases physical reactions to a
parent's separation can range from minor to substantial, or from hardly
perceptible to notably detrimental. Additionally, it can have more rapid,
transient, or long-lasting consequences that would greatly hinder the child's
development.[14] As
mentioned in Vivek Singh v. Romani Singh[15], “In cases of this nature,
where a child feels tormented because of the strained relations between her
parents and ideally needs the company of both of them, it becomes, at times, a
difficult choice for the court to decide as to whom the custody should be
given. No doubt, the paramount consideration is the welfare of the child.
However, at times the prevailing circumstances are so puzzling that it becomes
difficult to weigh the conflicting parameters and decide on which side the
balance tilts.”
The Supreme Court has
reaffirmed that the wellbeing of the minor child is the most important factor
and that the rights of the parties engaged in the custody dispute are
immaterial in the recent case of Vasudha Sethi vs. Kiran V. Bhaskar.[16]
After establishing the fundamentals in the matter of Nithya,[17] the
Court made it clear that the Court's determination in each instance must take
into account all of the relevant facts and circumstances. The objective
standard of the principle of the minor child's welfare must be used to evaluate
the factual components.
If we analyze the
above provisions, one thing is clear in a matter of custody of a minor child,
the paramount consideration is the "welfare of the minor" and not the
rights of the parents or relatives under a statute which are in force.[18] The
word "welfare" used in Section 13 of the Act has to be construed
literally and must be taken in its widest sense. The moral and ethical welfare
of the child must also weigh with the court as well as its physical well-being.[19]
While not the only deciding element, a child's wish is one of the most crucial
and significant factors that the Court must assess when deciding a case's
welfare. A child's request must be carried out for their overall satisfaction
and for their healthy mental and physical development if they are
able to express it
freely and it does not conflict with any other important welfare
considerations.[20]
Gender
Stereotyping
It is not the welfare
of the father, nor the welfare of the mother that is the paramount
consideration for the Court but of the minor and the minor.[21] Both mothers and fathers
have a prominent role to play in supporting the growth and development of their
children.[22]
However, even then there are various stereotypes such as the mother being more
caring and the father more capable of taking care of a child’s financial needs.
Article 14 of the
Indian Constitution states that;
“Equality before law-
The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex, or place of birth.”[23]
However, the Hindu
Minority and Guardianship Act, 1956[24], states that “in the case of a boy or an unmarried girl—the
father, and after him, the mother: provided that the custody of a minor who has
not completed the age of five years shall ordinarily be with the mother;”
Hence it is clear that the Hindu Law favours the father. Under Muslim law, too
similar conditions exist. According to Shiah Ithna Ashari Law, the mother has
the right to the custody of a male child until he attains the age of two years
and of a female child until she attains the age of seven years. Once the child
attains the age prescribed, the father has the right to custody of the child.[25]
The Guardians and
Wards Act 1890 also has given superiority to the father in matters of
guardianship and custody.[26]
According to section 19 (b) of the act, "Nothing in this chapter i.e.
appointment and declaration of the guardian
shall authorize the court to appoint or to declare a guardian of the property
of a minor whose property is under the superintendence of a court of wards or
to appoint or to declare a guardian of a minor, whose father is living and is
not in the opinion of the court unfit".[27]
In Md. Jameel Ahmed
Ansari v. Ishrath Sajeeda,[28] the
court awarded the custody of an eleven-year-old boy to the father, on the ground
that Muslim law allowed the mother to have exclusive custody only until the age
of seven in the case of male children, and there was nothing to prove that the
father was unfit to be a guardian in this case.
However, more often
than not, courts follow the principle of the Welfare of Child. In Surinder Kaur
Sandhu (Smt.) v. Harbax Singh Sandhu[29], the Court held that
Section 6 of the act[30]
constitutes a father as a natural guardian of a minor son. However, that clause
cannot take precedence over the crucial consideration of what is best for the
minor's welfare. The custody of the minor cannot be given to the father merely
because he is the natural guardian under the personal law that applies to him
without taking into account overall considerations of his physical and material
wellbeing, education, upbringing, happiness, etc. The interest of the minor
must take precedence over the claims of the rival parties. The mother is
typically the most qualified and eligible person to look out for the interests
of the child and ensure his welfare. There is nothing that can compare to a
mother's affection and love. The mother's love for her kid is unrivalled, as
acknowledged by universal phenomena and human perspectives.[31] A Bombay High Court
Judgement stated that “The company of a mother is more valuable to a growing
child unless there are compelling and justifiable reasons, a child should not
be deprived of the company of the mother. The company of the mother is always
in the welfare of the minor child. A child gets the best protection from the
mother. It is a natural thing for any child to grow up in the company of one's
mother. Neither the father nor any other person can shower the same kind of
love, affection, care, and sympathies to a child as that of a mother.”[32]
A parent’s duty is not
just to provide education or health care but also love, trust, and physical
comfort. As observed in Mousami Moitra
Ganguli's case[33],
the Court has to give due weightage to the child's ordinary contentment,
health, education, intellectual development, and favourable surroundings but
over and above physical comforts, the moral and ethical values have also to be
noted. They are just as crucial as the others, if not more.
When choosing which
parent is entitled to custody, it is not the better right of either parent that
would require adjudication. When choosing who will have custody of a minor, the
court must consider a number of pertinent considerations, including the kid's
wishes, the presence of a supportive and suitable environment for the child's
upbringing, and the ability and resources of the concerned parent to care for
the child.[34] The
choice of who will have custody is made after taking into account a series of
factors. Women are no longer expected to quit their jobs or pass up career
prospects in order to care for their children, as social standing has changed.
However, the same is no reason to deny her custody of the children. The same
was laid down by the Supreme Court in Vikram Vir Vohra[35] wherein the custody of
their son was granted to the mother irrespective of the fact that she was
moving to Australia as she had better career opportunities there and wanted to
take her son with her. The son had stayed with her his entire life and wanted
to continue living with her. The mother was asked to bring the child to India
twice a year so that he could meet his father.
Equality between
parents in all aspects is a must. In the iconic judgment, “Padmaja Sharma v.
Ratan Lal Sharma”[36]
Supreme Court held that a mother has an equal responsibility to maintain the
child financially. The idea that fathers are the only ones accountable for
raising the child was demolished through this decision. It is now necessary to
change the personal laws and the Guardianship and Wards Act to give the mother
equal rights. For the kid they gave birth to, women should not have to struggle
for equal rights. The challenges a woman faces when pregnant are not unheard
of. No one has the right to sever a child's bond with their mother since it is
exceptional and unadulterated, especially for trivial reasons like poverty,
remarriage, or the legal preference given to men. Equal rights, not favoured
rights, are what are desired. Just because she is a woman, a mother cannot be
denied custody. Guidelines that are gender-
neutral must be
created. The only question that matters is whether giving the father or the
mother custody of the minor child would be better for the child.[37]
Joint Custody
A child is not a
chattel nor is he/she an article of personal property to be shared in equal
halves.[38] The
power and duty of the Court under the Act is the welfare of minors.[39]
Mature thinking is indeed necessary in such a situation to decide what will
ensure the benefit and welfare of the child.[40]
In many nations around
the world, shared parentage systems are preferred to sole custody arrangements.[41]
This trend has developed partly in response to shifting household dynamics,
which have seen more male caregivers take on parental duties, as well as
psychological research showing that joint parental responsibility is better
than sole custody arrangements.[42] Such requests for shared
custody are, however, frequently weighed against the norm of what is in the
best interests of the kid. [43]
This is the case since it is thought that shared parenting leads to a child's
better growth. According to 1989 research on intact families, the same is
true. Similarly, a 1991 study proved better behavior on the child’s part in the
case of joint custody as compared to sole custody.[44] However, it is important to
analyse this from the perspective of India, where divorce is still frowned
upon. After a divorce, couples struggle to remain amicable or even courteous.
This causes perpetual conflicts and has an enduring impact on the child's
thinking. For this reason, the majority of parents choose to have sole custody
of the child in order to keep their former partners at a distance. Even young
children favour living with only one parent and frequently become antagonistic
to the other, as evidenced by the different situations cited above. The welfare
of the kid must be taken into account while determining whether or not both
parents should have joint custody.
However, it doesn't
seem appropriate to give the other parent absolutely no rights at all.
Therefore, even though visitation rights belong to the other parent, custody
will go to the first. As the child will then have the maturity to adjust to it
and at the same time would have the love of both parents, such visitation
privileges shall be extended over the term.
In Ruchi Majoo vs. Sanjeev
Majoo[45],
Hon'ble Supreme Court observed:
"68. The order
of the Delhi Court granting interim custody of the minor to the appellant did
not make any provision for visitation rights of the respondent father of the
child. In the ordinary course, the court ought to have done so not only because
even an interim order of custody in favor of the parent should not insulate the
minor from the parental touch and influence of the other parent which is so
very important for the healthy growth of the minor and the development of his
personality.”
In Rosy Jacob v. Jacob[46], a
three-judge Bench of this Court held that all orders relating to custody of
minors were considered to be temporary orders. The learned judges made it clear
that the Court has the right to alter the order as time goes on in the minor
child's best interests. The court even went so far as to state that even though
orders are based on consent, they can still be changed if the child's wellbeing
requires it. As a result, the court has the authority to modify its rulings in
light of evolving social demands and conditions.
Suggestions
The following
suggestions are made after considering various aspects discussed in this paper,
various other research papers, and judgments.
1. We humbly suggest that
child custody is a very important issue. Even if personal laws do not conflict
with the best interests of the child or violate Articles 14 and 15 of the
Indian Constitution, which discriminate against women by denying them equal
rights, religion should not be taken into account when addressing such issues.
2. Custody orders,
particularly those including visitation rights, must be regarded as temporary
decrees. The child should be given the freedom to choose who he wants to live
with once he is
3. old enough to understand
things and make his own decisions. The only time the court will get involved
and issue a contracting order is if his will conflicts with his interests.
4. Visitation rights
shall be increased over time. This would ensure that the child had enough time
to adjust to the surroundings and living arrangements.
5. An amendment shall be
made to the existing personal laws and legislation and equal rights shall be
granted to both parents.
6. The Supreme Court
shall lay down certain guidelines relating to issues like
a. Maintenance of a child
b. Visitation Rights both
to the other parent and his family- Grandparents love their grandchildren.
Denying them a right to meet their grandchildren is against the welfare of
both. Children shall not be denied the right to have a complete family because
of disputes between their parents.
c. Compulsory physiatrist
consultancy for both the child and parents- Both divorce and child custody are
difficult matters that significantly affect a child. Being in vulnerable
situations themselves, parents frequently overlook this. The child must
therefore receive some outside assistance in order for him to open up about his
issues and avoid losing himself. Additionally, by doing this, the courts may
make sure that the parent who has temporary custody of the child doesn't make
the child resentful of the other parent.
d. Grant of Child Support to the parent with
Child Custody and inadequate means to support the child. When custody is
granted to a parent because he or she appeared more capable of taking care of
the child, the other parent shall also bear the expenses equally.
Conclusion
It has been emphasized
in Bandhua Mukti Morcha v. Union of India and Ors.[47], “The child of today
cannot develop to be a responsible and productive member of tomorrow's society
unless an environment which is conducive to his social and physical health is
assured to him. Every nation, developed or developing, links its future with
the status of the child. Childhood holds the potential and also sets the limit
to the future development of society. The Founding Fathers of the Constitution,
therefore, have emphasized the importance of the role of the child and the need
for its best development.”
While children are the
jewels of their parents, they are also the assets who will be in charge of
leading the country in the future. The present of the child is linked to the
future of the country.
The child is shaped by
the tools of education, environment, skill, and health, which shapes the nation
since the child is prepared to do his part in the various realms, assisting the
public and advancing the economy.[48]
Therefore, it may be
said that the Indian courts have tried their best, and to some extent,
succeeded, in ensuring that the wellbeing of the kid is given first priority in
decisions regarding custody. In addition to this, the court has made decisions
that recognise the value of mothers, marking a significant step toward gender
equality. Improvements will be made to the current visiting rights while more
time and attention are given to the issue of joint custody. Parental or
religious preferences have no bearing on child custody. All that should be
taken into account is that it is about the child.
Article Information
NUANCES OF INDIA’S CHILD CUSTODY LAWS (By- Shweta Yadav & Kanishka Shankar)
Authors: Shweta Yadav, Kanishka Shankar
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/29
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.