The term ‘guardianship’ is very broad that deals with an adult’s rights/powers over a minor person and property. The term ‘custody’ is a specific referring to the minor’s upbringing/care and overall development. In Shri Rajinder Kumar Mishra v. Shrimati Richa[i], the court held that the child’s welfare is of paramount consideration while dealing with the issue of custody. The court has to decide the best interest of the child while granting custody.
Statutory Provisions
- Guardians and Wards Act, 1890: It is secular legislation governing the issues related to custody and guardianship for all children within India, irrespective of their religion.
- Hindu Minority and Guardianship Act, contains regulations regarding custody and guardianship of a Hindu child.
- Hindu Marriage Act: Section 26 of the Act grants power to the courts to pass interim orders regarding Hindu child custody, maintenance, etc.
- Muslim Law: Under Islam, a father is the natural guardian of a child, even though (in most cases) child custody remains with the mother till the child reaches puberty.
- Christian Law: Section 41 of the Divorce Act, 1869, deals with custodial rights of the child on judicial separation of the parents.
- Parsi Law: The custody rights are derived from the Guardians and Wards Act, 1890.
- Special Marriage Act: Couples whose marriage is registered under the Special Marriage Act may use Section 38 of the Act for determining child custody.
Natural guardian
Under the Hindu and Muslim laws, a father is the natural guardian of a child. According to Section 6 of the Hindu Minority and Guardianship Act the natural guardian of a Hindu minor boy or girl is the father and after him the mother.
The court granting custody to the natural guardian
In Surender v. Sushma[ii], the court stated that the welfare of the child is paramount. In the instant matter, the mother resided separately from her children for the past many years and the children were reluctant to stay with their mother. The court granted the custody to the father and the mother was granted visitation rights.
In Mohan Lal v. Kala @ Shanta Devi[iii], 4 years old minor who had lived with his father for above one year and he couldn’t recognize his mother when she tried to take him. He started crying when his mother approached to take him. The court granted custody to the father considering the child’s emotional attachment.
Child Welfare Principle
The child welfare principle focuses on two major goals:
- Ensuring the overall growth and development of the child, it focuses on the child’s best interest while dealing with custody related issues.
- In the public interest considering the children optimal growth. In Vivek v. Romani Singh[iv], the court concluded that the child-centric human rights law has evolved and is emphasis on the overall development of child, who is the nation’s future, is in the public interest.
The Hindu Minorities and Guardianship Act, 1956, Section 13 deals with the ‘principle of child welfare’ about a child’s custody or appointment of a guardian to take care of the child and property. Such an appointment shall be made considering the child’s welfare and interest. In Gaurav Nagpal v. Sumedha- The court held that child’s welfare is of the utmost importance and rest everything is secondary. The Court stated that a child\’s wishes, happiness with the guardian, educational needs, health, physical comfort, are very important to consider. In the case of Rosy Jacob v. Jacob A. Chakramakkal[v], the court held that paramount consideration is the welfare of the child.
In Vasudha Sethi & Ors v. Kiran V Bhaskar & Anr[vi]– Justices Ajay Rastogi and Abhay S Oka stated while dealing with the issue of child custody and repatriation of the child to the home country should be dealt with considering child’s welfare[vii]. The Supreme Court emphasized that in such cases the child’s welfare is paramount and parent’s rights are secondary. The court directed that the wife should shift to the US and contest the Circuit Court’s order and the husband will bear the costs or else the husband/father will get the child’s custody.
Factors to be considered for granting child custody
While granting child custody to a parent, the court considers the following aspects:
- A child\’s age is a prime factor to determine to whom the custody should be given. If the child is young then usually a mother is appointed as the guardian. However, there is no set rule that if the child is minor then the custody shall be granted to the mother only. The Division Bench of the Bombay High Court comprising of Justices A.A. Sayed and P.D. Naik stated that it cannot be said that the father is unfit to look after the child. The child is suffering from medical issues and he has undergone surgeries. The father is a doctor and hence he would be in a better position to deal with the health condition of the child and take requisite steps in this regard[viii]”.
- A child\’s gender is also considered by the court usually with a girl child the court takes into account that there should be a female in the house to take care of the child’s growing needs. In Mohan Kumar Rayana v. Komal Mohan Rayana[ix], the court granted the custody of a minor girl child to the mother considering that she needs the company of her mother for her overall development.
- Religious and Cultural consideration mostly the child’s guardianship/custody is given to a person of the same religious beliefs so that the child feels comfortable.
- Most importantly, guardianship is not given to a person having a civil or criminal record. The person who is taking a child\’s custody should be free from any charge or criminal record. In the case of Neelam v. Mann Singh[x], the court granted the custody of the minor child to the grandparents where their father was dead and the mother was prosecuted under Section 306 of the Indian Penal Code (IPC) for abetment of her husband\’s suicide.
- Financial Stability, the court considers that the guardian to whom the custody is granted should be finically stable to take care of the child’s needs. In Tarun Ranjan Majumdar v. Siddhartha Datta[xi], the court stated that the parent having a child\’s custody should be financially stable to ensure that child’s needs such as health, education, etc. are not compromised. In another case of Mausami Moitra Ganguli v. Jayant Ganguli[xii], the court granted the custody of the 5 years old child to the mother, who was highly qualified and well placed whereas the father has an average income. The court granted visitation rights to the father.
- Emotional aspects, the court does consider the child’s wishes and emotions. The child may be more attached to one parent. In Jackson v. Jackson[xiii], the court granted the custody to the mother after the father wanted to take the children to Australia with him. The mother contended that this may cause emotional damage to children.
- Overall growth and development, in the case of Ruchi Majoo v. Sanjeev Majoo[xiv], the court stated that parents should encourage the child to spend time with non-custodial parents as well and it is important for their healthy growth of the minor and development of his personality.
- Health issues of the child- In Mercein v. People[xv], the court granted the custody of a 3 years old girl to the mother as the child was too sick and the father couldn’t take proper care of her. The court considered the ‘best interest of the child’ while granting custody to the mother.
Joint custody to parents
Joint legal custody or joint parenting means that both parents have equal rights and access towards the child. It includes the child’s education and upbringing, and both the parents would share the physical custody of the child having equal contact with the child. The court promotes shared parenting or joint custody and ensures that non-custodial parents should get proper/ frequent access to the child.
Is the interest of the child the sole criteria?
The child\’s interest is the prime criteria while determining the issue of child’s custody, however other factors are also considered by the court such as child’s wishes, needs/demands, attachment with the parent, the aforesaid factors are also given due importance while deciding the issue.
In the case of Rosy Jacob v. Jacob A. Chakramakkal[xvi]– The Court while analyzing the object and scope of the Guardians and Wards Act, 1890 stated that it is not merely physical custody of the child but due protection of child\’s rights including health, maintenance, and education is important. While considering the issue of minor\’s welfare due importance is to be given to the right of the father who is thenatural guardian of the childbut if such custody doesn\’t promote the child\’s welfare then he may be refused such guardianship for the child\’s betterment.
Elizabeth Dinshaw v. Arvind M. Dinshaw[xvii], the Apex Court held that child\’s welfare is paramount and should be given due weightage while deciding the sensitive issue of child custody.
In the custody battles between the parents, the psychological equilibrium of a child is majorly affected, and the parents forget that in their dispute the major sufferers are their children. As discussed above, the courts around the globe have given the child\’s welfare the paramount while granting custody to either parent. However, now courts have been emphasizing the shared parenting and joint custody of the child.
[i] AIR 2005 All 379
[ii] AIR 2016 P&H 199
[iii] AIR 1937 SC 3
[iv] (2017) 4 SCC 573
[v] 1973 (1) SCC 840
[vi] CRIMINAL APPEAL NO. 82 OF 2022
[vii] https://lawtrend.in/rights-of-parents-not-important-the-welfare-of-child-most-important-in-custody-battles-sc/
[viii] https://www.thehindu.com/news/cities/mumbai/hc-grants-custody-of-child-to-father/article33145571.ece
[ix] Appeal (civil) 5088-5097 of 2007
[x] 2015 (2) RCR (Civil) 291
[xi] AIR. 1991 Cal 76
[xii] 2008 (4) RCR (Civil) 551
[xiii] 91 U.S. 122 (1875)
[xiv] AIR 2011 SC 1952
[xv] Barry, 25 Wend. 64 [N.Y. 1840]
[xvi] (1973) 1 SCC 840
[xvii] 1987 (1) SC 42