Law of Child Custody in India
Introduction:
The welfare of a child is of paramount importance and consideration. The breakdown of a marriage between spouses causes the child to be inevitably affected by such disintegration. The principles regarding the custody and welfare of the child are well-settled. The parent who gets the custodial rights of the child vested in them is decided upon various factors such as the ethical upbringing of the child, economic well-being of the parent, the exposure the child will have towards education etc. Under Indian law, both parents have an equal right in seeking the custody of the child and it is left to the Courts to decide which parents would have to primarily take care of the child, while the other parent would gain visitation rights. Accordingly, the concept of shared parentage has grown, which is the new concept in the custody system. In this concept both the parents will participate in upbringing of the child. The Law Commission of India is also concerned about the issue of adopting a shared parenting system in India and submitted its 257th Report along with the proposed amendment. In India, at present the custody of children is determined by two laws – the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. Both the Acts are silent on joint custody or shared parenting for children.
LEGISLATIONS GOVERNING CHILD CUSTODY IN INDIA
The Preamble to the Constitution of India affirms that India being a secular nation follows an array of different religions and the law has been accommodative of such diversity. Thus, every religion with their personal set of laws prescribes the procedure and process under which the custody of the child can be claimed.
Under Hindu law, the custody of the child has been dealt with under the Hindu Marriage Act 1955 as well as the Hindu Minority and Guardianship Act 1956. Section 26 of the Hindu Marriage Act, 1955 it has been prescribed that under the condition that both parents follow the Hindu religion, they can claim the custody of the child. This section specifically empowers the Court to pass orders with respect to the maintenance, custody and primarily the education of the child during the pendency of proceedings between the parents of such child. Under the Hindu Minority and Guardianship Act, 1956 pursuant to the case of Gita Hariharan v. Reserve Bank of India[1], the Court held that both the mother and the father could be termed as the natural guardian of the child when Section 6(a) of the Act was challenged as violative of Article 14 of the Indian Constitution. Further, Section 13 of the Act while deciding the guardianship of a Hindu minor, it was deemed essential to keep in mind that the welfare of the minor would be of paramount consideration.[2]
Islamic law prescribes the right of hizanat which gives the mother of the child the right to his or her custody so long as she is not disqualified. Such a right is recognized under law for the well-being of the child and for no other reason thus making it not an absolute right in the hands of the mother. Muslim law, however makes a distinction between the mother’s right over her son and daughter. For a son, among the Hanafis it was viewed that the mother has her right of hizanat until the age of seven while the Shia were of the opinion that until the weaning age, that is around two years old, the mother possesses such right. The Malikis however, believe that the mother has such a right until the son attains puberty. For a daughter, the Hanafis believed that the mother had the right of hizanat until she hits puberty while the Shafiis and Malikis believe that the mother possesses such right until she gets married.
Christian law does not provide for a prescribed set of laws for child custody in the Christian laws but the issues are sorted by Section 41 of the Indian Divorce Act, 1869. Reforms and laws set under Section 41 of the Divorce Act 1869. In addition to this, Section 42 and 43 of the same acts hold the right to decide upon the child’s custody once the judgment with respect to separation or divorce has been passed. The couples, however, have an option of choosing to be protected under the Special Marriages Act. Section 38 of Special Marriages Act, 1954 validates the child’s custody in cases where the parents belong to different religions or have taken a court marriage and explains the powers of the court over providing judicial custody.
Under Section 49 of the Parsi Marriage and Divorce Act, 1936 and Section 41 of the Indian Divorce Act, 1869, Courts are authorized to issue interim orders for custody, maintenance and education of minor children in any proceeding under these Acts. Guardianship for Parsi and Christian children is governed by the Guardians and Wards, Act, 1890.
Welfare Principle
While taking a decision regarding custody or other issues pertaining to a child, “welfare of the child” is of paramount consideration.[3] It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the court. The word “welfare” used in Section 13 of the Hindu Minority and Guardianship Act, 1956 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. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases, Gaurav Nagpal v. Sumedha Nagpal.[4]
The welfare principle is aimed at serving twin objectives which were laid in the case of Vivek Singh v. Romani Singh.[5] In the first instance, it is to ensure that the child grows and develops in the best environment. The best interest of the child has been placed at the vanguard of family/custody disputes according to the optimal growth and development of the child and has primacy over other considerations. This right of the child is also based on individual dignity. The second justification behind the welfare principle is the public interest that stands served with the optimal growth of the children. Child-centric human rights jurisprudence that has evolved over a period of time is founded on the principle that public good demands proper growth of the child, who is the future of the nation.
Before deciding the issue as to whether the custody should be given to the mother or the father or partially to one and partially to the other, the High Court must (a) take into account the wishes of the child concerned, and (b) assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker. All this must be done in addition to ascertaining the comparative material welfare that the child/children may enjoy with either parent.[6]
Considerations while granting custody of the child:
The issue of Child Custody crops up during divorce proceedings or judicial separation; it becomes an important issue to be decided by the courts. It refers to the process of controlling, caring and maintenance of the child less than 18 years of age by the custodial parent under set parameters such as financial security, understanding with the child, lifestyle etc. The prime right of nurturing the child with respect to education, development, medical, emotional, physical etc. lies with the custodial parent while the non-custodial parent holds the right to access and meet the child. The custody of a child remains one of the most sensitive and convoluted issues caused due to the separation proceedings of the parents. The custody, as seen, is guided mainly by the middle ground established by the judges in this regard. There has been a marked controversy between the various religious laws and the uniform legislation enacted by the State. However, the controversy regarding the various viewpoints of law should not compromise the future of the child. While resolving various pieces of legislation, it should be remembered that the welfare of the child along with assured social security is the prime motive behind the custody of a child. The parent in whom the custodial right is vested is supposed to look after the financial security, maintenance of the child with regard to proper lifestyle, healthcare, emotional, physical and medical development. The other parent is provided with the only right to access and meet the child. The family courts, while debating on the issue of custody, base their decision on the best interests of the child in question.
Conclusion:
The Family Courts while deciding on this need to keep the best interests of the child as of paramount importance. The consideration of paramount importance in a proceeding for the custody of a minor is the welfare of the child. No legal right, preferential right or any other right holds more importance than the well-being of the child. Any court of law grants custody to that party who can assure the court that the welfare of the child best lies with them. In innumerable cases, both the parents are provided with access to the child, but the physical custody of the child is usually granted to one parent.
References:
[1] Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228, 25
[2] Hindu Minority and Guardianship Act, No. 32 of 1956, S.13
[3] Sheoli Hati v. Somnath Das, (2019) 7 SCC 490.
[4] Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.
[5] Vivek Singh v. Romani Singh, (2017) 3 SCC 231
[6] Mamta v. Ashok Jagannath Bharuka, (2005) 12 SCC 452.