Child Custody Laws
The article ‘Child Custody Laws’ by Shivangi Dubey is a summarization of the provisions of Indian Laws governing the custody of children. India is a diverse country, and the laws governing the custody of children, belonging to different religions, also differ. Herein, both secular and personal laws have been discussed for a better understanding of the provisions of child custody laws in India.
When a marriage between a couple comes to an end so does the balanced environment for a child’s upbringing. Whether in the case of dissolution of marriage or judicial separation, the delicate question of custody of a child is inevitable. Custody refers to the maintenance and caring of a minor child (below the age of 18 years). The Courts, while deciding the question of custody, give foremost importance to the ‘welfare’ of the child and not to the ‘rights’ of the parents.
The Custody of Child under Different Laws in India
It is to be noted that the term ‘custody’ has not been defined in any law in India but the law governing custody is closely associated with guardianship. However, where on one hand guardianship refers to rights and powers that an adult has in relation to the person and property of a minor, on the other hand, the concept of custody relates to the day-to-day care and control of the minor.
The Indian law of custody is governed by personal laws, read along with the secular legislation of the Guardians and Wards Act of 1890. All these laws are construed, interpreted and implemented with the paramount consideration of the interest of the child.
A. Custody under the Hindu Law
Laws covering the provisions of Custody:
1. Hindu Minority and Guardianship Act, 1956
2. Hindu Marriage Act, 1955 (Section 26)
1. Hindu Minority and Guardianships Act:
It is to be noted that this law is in addition to and not in substitution or derogation of the Guardians and wards Act. section 6 of the Act provides that:
a) In the case of a minor boy and unmarried girl – the father is the first guardian and after him, the mother. However, it is well settled that this Section recognizes the established principle that the welfare of the child is paramount and therefore it is provided that the custody of the child who has not completed the age of 5 years is to be with the mother.
b) In the case of an illegitimate boy or an illegitimate unmarried girl – the mother and after her, the father.
c) In the case of a minor married woman – the husband (note: in case the husband is a minor, he is incompetent to be the guardian of his minor wife’s property)
Moreover, even Section 13 of the Act declares that, in deciding the guardianship of a Hindu minor, the welfare of the minor shall be the ‘paramount consideration’ and that no person can be appointed as guardian of a Hindu minor if the court is of the opinion that it will not be for the ‘welfare’ of the minor.
Case law: Archana Barthakur v. Dr Ranjit Barthakur, AIR 1985 NOC 125, Gauhati
In this case, the question of the custody of a 7 years old girl was brought before the court. The girl was living with her mother and was deeply attached to her mother. Here the mother had a steady income. The minor girl was not willing to go and live with her father, from whom she had been staying away for 5 years. The court was of the opinion that the girl’s welfare would be best protected if she remains in the custody of the mother. Thus, here the paramount consideration was given to the happiness and welfare of the child.
2. Hindu Marriage Act
S.26 of the Act lays down the authority of the court to pass interim orders in any proceedings under the Act, in relation to the custody maintenance and education of minor children, in consonance with their wishes. Under this section the court, on application, can also revoke, suspend or vary such interim orders passed previously.
Ms X and Mr Y have been divorced and the custody of the child ‘P’ has been given to the mother, Ms X. After 3 years Ms X got married to Mr Z. Is the remarriage a ground for removing the child from the custody of the mother?
Answer: No, the remarriage of the mother cannot be grounds for taking away the custody of the child from the mother. The decision has to always be taken in consonance with the welfare of the child.
B. Custody under the Islamic law
Islamic law is the earliest legal system to provide for a clear distinction between guardianship and custody, and also for explicit recognition of the right of the mother to custody. Under Islamic law, even though the father is the natural guardian of the child, custody belongs to the mother irrespective of the fact that the child is legitimate or illegitimate.
i. Mother’s right:
The right vests with the mother in case of –
a) son – till he reaches the age of seven;
b) daughter – till the daughter reaches puberty.
This right is known as the right of Hizanat which is enforceable against the father of the child or any other person. The mother cannot be deprived of this right unless she is found guilty of misconduct or has renounced her religious principles or if her custody is found to be unfavourable to the welfare of the child. The mother’s right to Hizanat is solely based on the interest of the children and is not an absolute right.
Case law: Israr Ahmad v. Azazul Hussain Ahmad & Anr.
The following provisions were discussed in this case-
Right to female relations in default of mother. Failing the mother, the custody of a boy under the age of seven years, and of a girl who has not attained puberty, belongs to the following female relatives in the order given below:-
a. mother’s mother, how high so ever;
b. father’s mother, how high soever;
c. full sister;
d. uterine sister;
e. consanguine sister;
f. full sister’s daughter;
g. uterine sister’s daughter;
h. consanguine sister’s daughter;
i. maternal aunt, in like order as sisters; and
j. paternal aunt, also in like order as sisters.
ii. Father’s right:
The father’s right to Hizanat is recognized under two conditions:
a) When the child completes the age up to which the mother or other females are entitled to the custody
b) In the absence of a mother or other female who has the right to Hizanat of minor children.
C. Custody under the Christian and Parsi law
Guardianship for Parsi and Christian children is governed by the Guardians and the Wards Act. The provisions related to the custody of the child could also be traced in sections 41 to 44 of the Indian Divorce Act, of 1869.
i. Section 41 states that in a suit for judicial separation, the court may pass orders as it may deem fit, with regard to the custody, maintenance and education of the minor children in the form of interim orders or a part of the decree itself. Such an application as far as possible should be disposed of within sixty days from the date of service of notice on the respondent.
ii. Similarly, such orders could be passed Section 43 which deals with the suit for obtaining dissolution or nullity of the marriage.
iii. Here, Section 44 provides that an application could be at any time even after the final decree for dissolution of marriage or nullity of marriage for custody, maintenance and education of the child.
The Court in the cases of custody exercises discretion as per the facts and circumstances of the cases without following any straight-jacket formula or strict rules. Like any other law, here as well, the future of the child is the key deciding factor.
Case law: Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari
“If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.”
X and Y, have been married for the past 5 years and have a minor child born in wedlock. However, now due to differences between the couple X and Y got divorced under the Divorce Act of 1869, and the custody of the child went to the plaintiff ‘X’, now in this case can the respondent ‘Y’ be given the visiting rights by the court?
Answer: Yes, even when one parent is given custody of the child, the other parent may be given “visiting rights”, for instance, the opportunity to spend every Sunday with the child.
The 2015 report on Reforms in Guardianship and Custody Laws in India, has brought to light the growing tendency of the laws and the inclination of the courts to bring equality between the mother and the father in custody rights.
However, it is also seen that, over the years, the child custody laws in India have evolved to adopt a uniform practice of giving utmost importance to the best interest of the child while deciding the question of, with whom the custody of the child shall belong. This view helps to ensure a secure future for the child regardless of changing familial circumstances.
 Mausami Moitra Ganguli v. Jayanti Ganguli, AIR 2008 SC 2262
 Reforms in Guardianship & Custody Laws in India, Report No. 257 of the Law Commission of India, Available Here
 First Appeal No. – 148 of 2018
 AIR 2019 SC (7) Scale 502
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