Matrimonial disputes are an inevitable derivate of both the dispute redressal system and conjugal distress. Specifically in cases of divorce, the major challenge is with respect to the custody of minor children.
Along with the Hindus, all the people following the Jain, Buddhist, and Sikh religions are governed by Hindu laws as well. It is due to the absence of other personal laws like for Muslims. Children’s custody is regulated by the Hindu Minority and Guardianship Act, of 1956 together with the Guardians and Wards Act, of 1890.
In India, the courts observe three broad categories of custody. These types of custody are as follows:
- Sole custody: –One parent is granted custody & the other is proved unfit for bringing up the child.
- Joint physical custody: –In this, the child will reside with one parent physically who will undertake holistic care of the child primarily but both the parents will have legal custody.
- Third-party custody: –In this, a third person will get the child’s custody instead of his/her biological parents by the court.
The courts in their numerous judgments have followed several parameters to decide the parent who would enjoy a child’s custody. These are as follows:
- The topmost priority of the court remains the safety/security of the child irrespective of the parent’s financial conditions.
- Secondly, the ethical upbringing of the child by either of the spouses is given umpteen importance.
- Thirdly, the court determines which parent can provide a better education to the minor child.
- And lastly, they consider the economic well-being of the parents to identify the best condition for the child.
Several customary principles that have to be kept in mind by courts while dealing with custodial conflicts are:
- The custody of a child below the age of 5 years is necessary to be given to the mother as it is considered to be a very tender age.
- under Hindu law, the father is the natural guardian and has the ultimate right of child custody. This has been codified in Section 6 of Hindu Minority and Guardianship Act, 1956 and the custody of children in India between the ages of 5 and 18 years has always been the right of the father.
In Geeta Hariharan v Reserve Bank of India, the Supreme Court held that the mother can only claim custody on the pretext of the death of the father or in his absence. In case the child is illegitimate, the right to custody is only with the mother.
- If the child is above the age of 9 years, then his/her choice is also taken into consideration by the court.
- The ultimate rule for granting child custody is that it should be in the ‘best interest of the child’. All the rules laid down above can be disregarded with a strong implication of affecting the ‘best interests of the child’ adversely. The court is expected to use its prudence to hold the Welfare of minors to be of paramount consideration.
Section 6 of India’s Hindu Minority and Guardianship Act, 1956 provides that the father is the natural guardian of a Hindu minor boy or unmarried girl, and only after him, the mother. It also provides that the husband is the guardian of a married minor girl.
Such customary practices are against the basic feature of equality enshrined in the Indian Constitution. It not only prejudices against women by not considering them to be natural guardians at parity with men but also promotes centuries-old stereotypes. Immediate amendments need to be passed to repeal such regressive laws.
The Law Commission in 1989 pointed out this perpetual inequality and another similar unjust provision in Section 9(b) of the Guardianship and Wards Act, 1890 in its report. The latter was subsequently repealed through an amendment. A stringent step is yet to be taken to undo this engraved anti-constitutional theory in the Hindu personal laws.
Even though in the Indian context, the mothers are given a slight preference over the fathers during custody battles in family courts, the written laws say otherwise and unjustly designate fathers or husbands as the sole natural custodians just because of imbibed patriarchal practices.
The court has over the past few decades pronounced multiple judgments wherein a mother who was otherwise negligence and the prime root of dispute behind the divorce has been bestowed the custody of the child. This is due to the sole reason of her being considered the one to tend due care to the child while the father remains just the economic burden bearer.
Such cases set a wrong precedent against the fathers who might otherwise ensure the best welfare for the child even more so than the mothers. No matter how much due care and precaution the courts may observe, some degree of error always prevails in determining such cases. Mothers enjoying considerable advantages in these situations reap the ultimate benefit of custody.
Even in cases where joint custody is granted by the courts, proper obedience to the court’s directions might not be followed by either of the parties due to which the other party might not be able to even see the child at appropriate intervals.
A lack of a systematic method for the speedy redressal of custody-related grievances and interim reliefs in the meantime makes this process more gruesome for many parents. A robust procedure resulting from obscure judicial decisions might prove to be eventful as future precedents in these sensitive and personal matters.
An efficient and experienced attorney is thus essential to competitively represent the parties in the courtroom. With their wit and eloquence, they possess the ability to convince the bench in favor of their motion in a timely manner. This can overturn the practices being followed since times immemorial suiting the particular situation with the child’s welfare and best interest being the topmost priorities behind the court’s discretion.
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