Deciding Child Custody Matters Under Various Personal Laws

India is rich in cultural diversity. The most prevalent religions in the country are – Hindu, Muslim, Parsi, and Christian, and every religion has its usages and customs out of which some are even formed into laws. These personal laws cover almost every aspect ranging from marriage to divorce, succession to custody, but in case any aspect is missing or undiscussed then the secular law come into the picture. In today’s scenario, divorce has become quite rampant but a very critical issue that arises with it is what will happen to the children of the broken marriage. The child gets caught up in the issues of their parents and gets affected emotionally and mentally. The courts have the final say in the matters of custody and they have to keep in mind the welfare of the children. They have to look at and weigh all the factors such as financial condition, moral behaviour, mental stability, family support, surroundings, and most importantly, the child’s wish before determining the question of custody.

The term ‘custody’ has not been defined in the Indian legal system. The law governing the custody of children is closely linked with that of guardianship. Guardianship refers to a bundle of rights and powers that an adult has concerning the person and property of a minor, while custody is a narrower concept relating to the upbringing and day-to-day care and control of the minor.¹ The term ‘guardian’ has been defined under the Guardians and Wards Act, 1890 as a “person having the care of the person of a minor or his property or of both his person and property”.²

Statutory Laws

• Hindu Law
  The Hindu Marriage Act, 1955 u/s 26 empowers the courts to pass interim orders concerning the custody, maintenance, and education of minor children, considering their wishes. It further empowers the courts to revoke, suspend, or modify any interim orders passed earlier.³ The Hindu Minority and Guardianship Act, 1956 (HAMA) provides for the law relating to minorities and guardianship among Hindus. It provides for natural as well as testamentary guardians.⁴
• Muslim Law
  Islamic law was the first law that differentiated between custody and guardianship. According to this law, the father is the natural guardian but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty. The concept of Hizanat provides that, of all persons, the mother is the most suited to have custody of her children up to a certain age, both during the marriage and after its dissolution.⁵
• Parsi & Christian Law
  S. 49⁶ of Parsi Marriage and Divorce Act, 1936, and S.41⁷ of Divorce Act, 1869, empower the courts to pass interim orders for custody, maintenance, and education of minor children. Guardianship for Parsi and Christian children is governed by the Guardians and Wards Act of 1890⁸
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• Secular Laws
  The Special Marriage Act, 1954 provides for custody of children u/s 38 and empowers the district courts to pass interim orders concerning custody, maintenance, and education of minor children, considering their wishes. It further empowers the courts to make, vary, revoke, or suspend the earlier pass orders.⁹
  The Guardians and Wards Act, 1890¹⁰ (GWA) is a secular law and before this Act, there was no all-India Act dealing with the guardianship of minors. It is a comprehensive law laying down all the rights and obligations of the guardians, the procedure for their removal and replacement, and remedies for misconduct by them.¹¹

Factors determining the custody: Judicial Perspective

Before understanding the custody laws, we need to acknowledge the patriarchal nature of the society which has granted fathers a superior position since ages. Earlier, the father was the sole guardian of the children considering the status of women – uneducated and unrecognized. Therefore, the personal laws were framed back in those years in consonance with the status of men and women in society. However, times have changed and personal laws need to be overhauled. Meanwhile, the laws are reviewed, and the judiciary has been proactive and pro-child to protect their rights. Children are the supreme asset of the nation. Thus, while determining the issue of custody, the paramount consideration is the welfare of the child. In all statutes, personal or secular the principle of “welfare of the child” has been recognized except in Islamic law. The judiciary considers the welfare and wishes of the child while granting custody and this can be inferred from the following cases.

In the landmark case of Githa Hariharan v. Reserve Bank of India, the constitutionality of S. 6(a) of HAMA was challenged in which the mother was disentitled from being a natural guardian during the lifetime of the father. The Supreme Court held that the principle of the welfare of the minor is the paramount consideration and held that the word “after” should be interpreted as “absence”.¹² Therefore, the mother can be the natural guardian in the lifetime of the father.

In another case, the twin objectives of the welfare of the child principle were observed - to ensure that the child grows and develops in the best environment and public interest that served the optimal growth of the children.¹³

In the case of Lahari Sakhamuri v. Sobhan Kodali, it was observed that the crucial factors that have to be kept in mind by the courts for gauging the welfare of the children such as maturity and judgment; mental stability; ability to provide access to schools; moral character; ability to provide continuing involvement in the community; financial sufficiency, and involving relationship with the child.¹⁴ In the case of Mausami Moitra Ganguli v. Jayant Ganguli,¹⁵ the Supreme Court observed that better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child.

Conclusion

The issue of custody is really sensitive as the entire future of the concerned children is in question. Moreover, seeing their parents separate must already be quite heart-wrenching¹⁶ and mentally disturbing for them. Thus, the judiciary while deciding the question of custody has to keep the welfare of the children as the main consideration.

According to the UN Convention on the Rights of Child¹⁷ “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” This is similar to the principle of “welfare of child” in the domestic legal framework.

The custody means that one parent who has been granted the custodian rights will be responsible for the overall needs of the child and the other parent will only be granted visitation rights. This visitation right with the parent is one way of overlooking that the other parent is taking care of the child well and in case not, the custody can be challenged in the court. The court is always tilted towards the welfare of the child and hence, both parents have equal opportunity in the court to get custody of the child, unless proved otherwise.

There is no straightjacket formula as to what will constitute the welfare of the child, it will depend upon the facts and circumstances of each case and it is a heavy duty cast upon the Judiciary to grant the custody of the child judiciously. However, an overall perusal of the personal laws shows the inconsistencies between them and the welfare of children being paramount there must be a uniform law for at least matters concerning the children.¹⁸

Article is authored by Uniqua Singh, a Ph.D. Student from IIULER, Goa.