Custody of the child

Jun 7, 2020

Child custody is a term used in family law courts to define legal guardianship of a child under the age of eighteen years. The issue of child custody often becomes a matter for the court to determine during divorce or marriage annulment proceedings. However, in most of the cases, both the parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children and not always on the best arguments of each parent. Therefore, the custody of a child encompasses the care, control, guardianship of a child. 

According to Section 13 of the Hindu Minority and Guardianship Act, 1956, welfare of the minor is to be of paramount consideration while deciding the guardian of a minor child and Section 25 of the Guardian and Wards Act, 1890 lays down in committing custody, the welfare of the children will be the main consideration before the Court.

In Mr. Richard v. Mrs Richard, it was held that the minor’s welfare which is to be of paramount consideration while deciding the custody.

In Saraswathibai Shripad v. Shripad Vasanji, the High Court of Bombay stated that “It is not the welfare of the father, nor the welfare of the mother that is the paramount consideration for the Court. It is the welfare of the minor alone which is to be taken as paramount consideration.”

Under the Hindu Marriage Act, 1955, Courts are empowered to make reasonable provision for custody, maintenance and education of children under Section 26. However, Section 6 of the Hindu Minority and Guardianship Act, 1956, the custody of a child who has not completed 5 years of years shall ordinarily with mother. If the court deems proper, it may give the custody of the child above five, male or female, to the mother. One should not try to infer the reverse proposition; the custody of a child above the age of five should be with the father. This is not correct. The entire matter has to be decided on the basis of welfare of children and Indian Courts have done so. 

In the case of Smt. Surinder Kaur Sandhu v Harbax Singh Sandhu , the Court held that the minor child is about 8 years of age and love and care of mother ought not to be denied to him. Father made coarse stuff. Mother earns income which is certainly not large by English standards, but is not low as to enable her to take reasonable care of the child. Section 6 of the Act constitutes father as a natural guardian for son and unmarried daughter but the said provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor.

Merely because father of the child is in better financial position than the other, it does not mean that the child’s interest will best be served if it remained with the father and his family. No amount of wealth can substitute the mother like love and care for the benefit of the child. When she is in a position to provide basic necessities and amenities to the child for its comfort and good upbringing, luxuries spoken of by the father, cannot persuade the Court to deprive the mother of her child and allow the custody of the child to remain with him. Mother will be in a better position to discharge parental obligation.

The paramount consideration in the custody of a minor is the interest of the child and not the rights of the parents. Human nature being all the same and if the mother is a suitable person to take the charge of the child, it is quite impossible to find an adequate substitute for her for the custody of the child of tender years, and consequently the mother is preferable to the father in such a case. 

If we read the Section 6, it is implied that child’s custody is preferred to father and after his death, then the mother which further arose the questions regarding the inability of a mother to take care of the child. 

However, in the landmark judgement of Ms Githa Hariharan and another v. Reserve Bank of India and another the Apex Court interpreted the word “ after” in Section 6(a) of Hindu Minority and Guardianship Act, 1956 and stated that the word did not essentially mean after the death of the father but on the contrary, it means that ‘in the absence off’ be it temporary or otherwise or total indifference or inability of the father towards the child by reason of ailment or otherwise.

Also in the case of  Shalu Nigam & Anr vs The Regional Passport Officer & Anr, the Delhi High Court held that mother's name is sufficient and especially,  a single woman can be a natural custodian and also a parent. 

In the case of Gaurav Nagpal vs Sumedha Nagpal, the Apex court stated that the children are not possessions for their parents. Absolute right of parents over the lives of their children must yield to the considerations of their welfare as human beings so that they may grow up in a normal and stable manner.

Therefore, the courts generally tend to award the child’s custody to the parent who demonstrates adequate parenting skills and the least disruption for the child.