May 12, 2021

“Custody of a child shall be handed over to such a person who will foster him with care, love and affection.” – Hon’ble Justice Vinod Prasad. The Supreme Court of India establishes that in the case of the child’s custody, the first and paramount consideration is the child’s welfare and interest and not the rights of the parents. After the separation of spouses, the children born out of the marriage are the most affected by the divorce. Thus the most crucial factor for who gets the custody of a child is the child’s welfare. The factors that constitute the child’s welfare include the upbringing of a child, his or her safekeeping, providing them with educational facilities and the attachment of the child to the parent.

The law governing the child’s custody is closely linked with that of guardianship. The latter refers to the right and power; an adult has in relation to the child and his/her property while custody refers to the upbringing of the minor child.  The term ‘custody’ is nowhere defined in any Indian law. 

Both the parents hold equal rights on the custody of the child. However, it’s the court’s discretion on deciding who gets the custody. While granting custody to a parent, the court ensures that the child will grow and develop in the best environment. It prioritises the child’s best interests, and it makes its decision depending upon the financial status of the parent, their mental and physical health, the child’s attachment towards that parent and the intention of the custodian to gain custody. After the dissolution of a marriage, the custody of a child can be:

  • Legal custody: This is the most common custody where one parent gets the physical custody of the child i.e. the child lives with them, and the non-custodial parent gets visitation rights of the child. The parent having physical custody of the child is considered to be the child’s primary caretaker. 
  • Joint custody: In this type of custody, both the parents have legal custody. One parent has the physical custody, i.e. the child lives with them, and they are the child’s primary guardian. Both parents share the responsibility for decision making and upbringing of the child. 
  • Sole custody: In this custody, the court declares one parent to be unfit, and a suite and therefore, the other parent gets the sole custody of the child. 
  • Third-party Custody: Neither of the parents gets the custody of the child, and the court grants custody to a third party. Third-party custody is generally granted to grandparents. 

India being a secular country, follows different laws for different religions. Every religion has its personal law which mentions the rules and regulations for seeking child custody. 

  1. Custody under Hindu Law: Sec. 26 of the Hindu Marriage Act 1955 deals with the child’s maintenance, care, and education when both parents belong to the Hindu religion. Sec. 38 of the Special Marriage Act 1955 governs a child’s custody when both parents belong to different religions. Under the Hindu Minority and Guardianship Act 1956, only the biological parent is allowed custody of the child provided they are Hindu. The custody of a child below the age of five will be granted to the mother. 
  2. Custody under the Muslim Law: As per the Shariat Law, the father is considered the child’s natural guardian irrespective of the sex. At the same time, the mother is entitled to the custody of the boy until he reaches the age of seven and daughter until she attains puberty.
  3. Custody under Parsi Law: The Guardians and Wards Act, 1890 deals with the child’s provisions of custody after divorce. The primary aim of this act is the child’s welfare. 
  4. Custody under Christian Law: The child’s custody is given to a person who can serve better. The claim can even be denied if the court finds both parents unfit of providing a comfortable environment to the child.

In the case of Archana Barthakur v. Dr Ranjit Barthakur, the custody of a girl of seven years was before the court. The girl was away from her father and was greatly attached to the mother, who had a steady income. The court felt that the child would not find happiness if placed under the father’s custody and that her welfare would be protected if she remained under the custody of the mother. In another case of Ruchi Majoo v. Sanjeev Majoo, the Supreme Court held that no minor child shall be isolated from the other parent’s parental influence, which plays a very important role in the child’s growth and personality development.

Divorce and custody battles between spouses can get ugly, and the innocent children get caught up on the legal and psychological warfare between the parents. In a petition filed by Ms. Solouchna Rani in the Supreme Court, she raises concerns on how a child cannot enjoy single-parenting benefits. It completely violates a child’s fundamental right to enjoy the love and affection of both parents. When the custody of a child is given to one parent, the child’s well-being is severely affected, compromising their quality of life which hinders their overall growth.