SVKM’s NMIMS

Kirit P Mehta School of Law, Mumbai

Project Submitted

CUSTODY UNDER FAMILY LAW

In compliance to partial fulfillment of the marking

scheme, for Trimester 10 of 2017-2018, in the subject of

FAMILY LAW- I

Submitted To
Professor Ishnoor Arora

ADARSH HIMATSINGHKA
A032
BBA LLB (H)
INTRODUCTION

At present, our legal framework for custody is based on the assumption that custody
can be vested with either one of the contesting parties and suitability is determined in
a comparative manner.
But, just as the basis for dissolving marriage has shifted over time, from fault based
divorce to mutual consent divorce, we need to think about custody differently and
provide for a broader framework within which divorcing parents and children can
decide what custodial arrangement works best for them. In modern day custody
battles, neither the father, as the traditional natural guardian, nor the mother, as the
biologically equipped parent to care for the child of tender age, are routinely awarded
custody. The principle, “best interest of the child” takes into consideration the
existing living arrangements and home environment of the child, each case will be
decided on its own merit, taking into account the overall social, educational and
emotional needs, of the child.
In the legal systems of several western countries, there is a presumption in favor of
joint custody and sole custody is awarded only in exceptional circumstances, we are
already aware of the inequalities in parental roles, responsibilities and expectations
that exists in our country.

A marriage breaking up early in the marital life-span also means the involvement of
younger children in marital discord, separation, divorce, custody, access and
maintenance issues. Within the Family Court system, where young children are
involved, two issues become important: Family law jurisprudence and mental health
of children. Analyses of cases have revealed that the judicial system within the
Family Court strives to keep the interest of the child at heart, in some instances
ascertaining the child's wish.

Just as there are marriage counselors in the Family Courts, with increasing numbers
of divorce, we need child counselors too to work with children and their parents to
promote the well being of children.
CUSTODY UNDER HINDU LAW

All the personal law matrimonial statutes make provisions for dealing with the issue
of child custody. The provisions in the matrimonial Acts can, however, be invoked
only when there are some proceedings pending under the Act. Hindus have an
additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Apart
from this, there is the Guardians and Wards Act 1890 (GWA). This is a secular law
for appointment and declaration of guardians and allied matters, irrespective of caste,
community or religion, though in certain matters, the court will give consideration to
the personal law of the parties. The provisions of the HMGA (and other personal
laws) and the GWA are complementary and not in derogation to each other, and the
courts are obliged to read them together in a harmonious way. In determining the
question of custody and guardianship, the paramount consideration is the welfare of
the minor. The word `welfare' has to be taken in its widest sense, and must include the
child's, moral as well as physical well-being, and also have regard to the ties of
affection.''
The English and Indian decisions are replete with such statements that: (i) the children
of tender years should be committed to the custody of the mother, (ii) older boys
should be in the custody of the father, and (iii) older girls in the custody of the
mother. But these are judicial statements of general nature and there is no hard and
fast rule. As to the children of tender years it is now a firmly established practice that
mother should have their custody since father cannot provide that maternal affection
which are essential for their proper growth. It is also now ac for proper psychological
development of children of tender years ma is indispensable.'

The Hindu Minority and Guardianship Act, 1956 contains a provision that lays down
that custody of a child upon the age of five should ordinarily be with the mother.
Under other personal laws, though it is no such statutory provision, the Indian courts
have consistently taken view.

In Re Kamal Rudra Das J. expressed the view vividly thus:

“I have no doubt in my mind that the mother's lap is God's own cradle for a child of
this age, and that as between father and mother, other things being equal, a child of
such tender age should remain with mother.”
But a mother who neglects the infant child, as she does not want to sacrifice the type
of life she leading can be deprived of custody.
In respect of older children our courts take the view that the male children above the
age of sixteen years and female children above the age of fourteen years, should not
ordinarily be compelled to live in the custody to which they object.' However, even
the wishes of the mature children will be given consideration only if they are
consistent with their welfare. In 'Venkataramma v. Tulsi', ”the court disregarded the
wishes of the children as it found these to induced by wholesale persuasion and were
even tortured.”

Custody to third persons: Ordinarily, custody should be given to either of the

parents. But where welfare so requires, custody may be given to a third person. In
'Baby v. Vijay' granting custody of two minor children to maternal grandfather, the
court observed that even if the father was not found unfit, custody might be given to a
third person in the welfare of the child.'

JUDICIAL INTERPRETATIONS

In 1950 decision under the GWA, the Madras High Court awarded custody to the
mother based on the welfare principle, even though the father was not found unfit to
be a guardian. Courts
have held that in deciding custody, children should not be uprooted from their familia
r surroundings just to give effect to the father’s right to natural guardianship.

In a case where the child was brought up by the maternal grandparents after the death
of the mother, the Andhra Pradesh High Court held that, “In view of Article 2- of the
Constitution, children cannot be treated as chattel and the father’s unconditional
right to the custody over children and their property cannot be enforced, even if
the father was not unfit to act as the guardian.” 1

1 L. Chandran V. Venkatalakshmi AIR 1981 AP 1

In Suharabi V. Mohammed2; where the father objected to the mother’s custody of the
one and a half year old daughter on the ground that she was poor, the Kerala High
Court held that the mother was authorised to have custody of a daughter of that age
under Islamic law. In similar vein, M.D Jameel Ahmed Ansari V. Ishrath Sajeeda3;
the Andhra Pradesh High 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 case of male children, and there was nothing to prove
that the father was unfit to be a guardian in this case. Two problems can be noted with
the legal and judicial framework described above. The first is the superior position of
the father in case of guardianship, though not necessarily in case of custody. The
second is the indeterminacy of the welfare of the child principle; despite its wide
spread usage.

LANDMARK CASE

ROXANN SHARMA V/S ARUN SHARMA

In a remarkable judgment dealing with interim custody of child suffering in parent’s
matrimonial disputes, visitation rights and guardianship under the Hindu Minority &
Guardianship Act, 1956 and Guardian & Wards Act, 1890, a 2 judge bench of
Supreme Court laid down various propositions of law while awarding the interim
custody till final disposal by the trial court to the mother.

BRIEF FACTS: In a custody battle between estranged parents, a minor child, who
has not completed five years of age, shall be allowed to remain with the mother, the
Supreme Court has ruled saying that in such cases child should not treated as a
"chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a
father could be guardian of the property of the minor child but not the guardian of his
person if the child is less than five years old.
HELD: The Court said that there could be no cavil that when a Court is confronted
by conflicting claims of custody there are no rights of the parents, which have to be
enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is

2 AIR 1988 KER 36

3 AIR 1983 AP 106
only the child's welfare that is the focal point for consideration. Parliament rightly
thinks that the custody of a child less than five years of age should ordinarily be with
the mother and this expectation can be deviated from only for strong reasons.
The apex court quashed the order of Bombay high court, which granted custody of a
two-year-old child to father on the ground, that the Mother had not established her
suitability to be granted interim custody of the Infant.

The HMG Act postulates that the custody of an infant or a tender aged child should be
given to his/her mother unless the father discloses cogent reasons that are indicative
of and presage the livelihood of the welfare and interest of the child being
undermined or jeopardized if the custody is retained by the mother. Section 6(a) of the
Act, therefore, preserves the right of the father to be the guardian of the property of
the minor child but not the guardian of his person whilst the child is less than five
years old. It carves out the exception of interim custody, in contradistinction of
guardianship, and then specifies that custody should be given to the mother so long as
the child is below five years in age. The court said that the Act placed the onus on
father to prove that it was not in the welfare of the infant child to be placed in the
custody of mother and HC order virtually nullifies the spirit of the enactment. The Act
immediately provides that the custody of a minor who has not completed the age of 5
years shall ordinarily be with the mother. The use of the word 'ordinarily' cannot be
over-emphasized. It ordains a presumption, albeit a rebuttable one, in favor of the
mother.

Gita Hariharan v. Reserve Bank of India

The constitutional validity of Section 6(a) was challenged as violating the guarantee
of equality of sexes under Article 14 of the Constitution of India. The Supreme Court
considered the import of the word 7after8 and examined whether, as per the scheme
of the statute, the mother was disentitled from being a natural guardian during the
lifetime of the father. The Court observed that the term 7after8 must "e interpreted in
light of
the principle that the welfare of the minor is the paramount consideration and the cons
titutional mandate of equality between men and women. The Court held the term
‘after’ in Section 6(a) should not be interpreted to mean ‘after’ the lifetime of the
father, but rather that it should be to mean ‘in the absence of the father’. The Court
further specified that ‘absence’ could be understood as temporary or otherwise or total
apathy of the father towards the child or unavailability of the father by reason of
ailment or otherwise.
Therefore, in the above specific situations, the mother could be the natural guardian
even during the lifetime of the father. Section-9 of the HMA 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.
First, the father continues to have a preferential position when it comes to natural
guardianship and the mother becomes a natural guardian only in exceptional
circumstances, as the Supreme Court explained in Gita Hariharan. Thus, even if a
mother has custody of the minor since birth and has been exclusively responsible for
the care of the minor, the father can, at any time, claim custody on the basis of his
superior guardianship rights. Parental authority supersedes the welfare principle,
while under the HMA the welfare principle is of paramount consideration in
determining guardianship. Section 2 of the Hindu Marriage Act authorizes
courts to pass interim orders in any proceeding under the Act, with respect to custody,
maintenance and education of minor children! in consonance with their wishes. In
Islamic law, the father is the natural guardian, but custody rests with the mother until
the son reaches the age of seven and the daughter reaches puberty, Islamic law is the
earliest legal system
to provide for a clear distinction between guardianship and custody, and also for expli
cit recognition of the right of the mother to custody

CONSIDERATIONS WHILE DECIDING CHILD CUSTODY CASES

A number of jurisdictions have statutes that enumerate specific factors to guide courts
when they consider the best interests of a child, generally, these factors relate to: the
physical and mental condition of the child. The physical and mental condition of each
parent, the child’s relationship with each parent, the needs of child regarding other
important people (extended family members, peers, etc.) The role each parent has
played and will play in the child’s care, each parent’s ability to support the child's
contact and relationship with the other parent, each parent’s ability to resolve disputes
regarding the child, the child’s preference, any history of abuse, and the health.
Safety, and welfare of the child$ A child8s preference in matters of custody is
generally taken into consideration if the child is sufficiently intelligent and mature.

A number
of jurisdictions require divorcing parents either jointly or individually to submit a shar
ed parenting plan to the court. The plan must address major areas of decision-making,
including the child’s education, the child's health care, religious upbringing,
procedures for resolving disputes between the parties with respect to child
raising decisions and duties? and the periods of time during which each party will
have the child reside or visit with him, including holidays and vacations, or the
procedure by which such periods of time shall be determined. The parenting plan
itself is not a legal document; a court to have legal effect must approve it

CONCLUSION

In proceedings before Matrimonial Courts, the Courts have to decide the question of
custody of children. The Courts retain this power not only during the pendency of
proceedings, but also after passing of a decree. It can revoke, suspend or vary, any
such order made earlier. While giving the custody of a child, the Courts have to keep
in mind the welfare of a child, which is a paramount consideration. Though other
factors are also important, but welfare of the minor is of utmost consideration while
disposing of an application for custody of minor children. The wish of a child is also
equally important. But the wish of the child becomes relevant, if the child is old
enough to make an intelligent preference. in the case of a female child generally the
Courts have given custody to the mother as on attaining the age of puberty, such child
requires the care and attention of the mother. Thus, over and above of all factors, it is
the welfare of the child that is the decisive factor while deciding the question of
giving custody of a child.
REFERENCES
1. Mulla, Principles of Hindu Law, (New Delhi, Butterworths India, 2001
2. Rights of Women in Relation to Marriage in India, Association for Advocacy
and Legal Initiatives, sourced from,
http://www.iwrawap.org/aboutus/pdf/FPrights women.rtn.marriage.pdf
3. Shamona Khanna, “Challenging the Unequal position”, Justice for women,
(Indira Jaising ed., Goa: The Other India Press, 1996).
4. “Removal of Discrimination against Women in Matters Relating to
Guardianship and Custody of Minor Children and the Elaborations of the
Welfare Principle”, Law Commission of India, 133rd Report
5. Jayanthi Natarajan, “The justice of law”, The Hindu, March 2nd 1999
6. Convention on the Elimination of All Forms of Discrimination against
Women (CEDAW)
7. Arun Kumar, “Guardianship and Custody of the Person of a Minor Child –
Conflicting Claims”, Journal of the Indian Law Institute, Vol. 17: 2, 1975.