Child Custody

December 26, 2023

This article has been written by Ms. Samna Syed, a 3rd year student of Sri Padmavathi Mahila Viswa Vidyalayam, Tirupati.

ABSTRACT :

Child custody is one of the most emerging and challenging aspects of divorce. It is important to understand how child custody works in India. In India both mother and father (parents) have legal rights towards child. It also means both the parents have equal amount of care and responsibility to raise their child, but in our country we see a clear division of parenting which is burden of taking care of children is on mother’s shoulder but not on father. This parenting have concluded many problems on child custody by this thought process while getting child custody before court mother’s have more advantages than father in comparison. It is because of our deep-rooted thoughts by our ancestors which are passing till date. It is much needed concept/thought to be changed. This article is about that thought and break that stereotype.

INTRODUCTION :

Child custody comes into play when a couple decides to take divorce and get separated from each other when things go beyond and unbearably disturbing and problematic in a married relationship. When couples decide to get separated it includes many more problems and responsibilities like custody of their children that was born out of marriage and who gets the custody of the children. Basically child custody cases and situations born/arise only during divorce, annulment, separation, adoption, parental death etc.

After a couple gets divorced the children should be provided with a permanent residence with either parent. If child(ren) is under the age of 18 or minor the benefits of the children are given precedence over the needs of the parents. The parent’s financial, mental, social well-being will be assessed to determine who is best to raise a child. Children who attained the age of nine have the option to choose or decide with whom (parent’s) they want to live with. However depending on situations or circumstances of case both parents will be given equal opportunity to take care of child.

Child custody cases and issues have arisen drastically during COVID-19 as divorce rates have skyrocketed during the lockdown. Since from pandemic the number of women related issues and divorce cases have increased. The number of cases per month has increased from 1000 to 3000 and the demand for advocates has also increased.

This is an gist about child custody from now on we will be discussing about child custody in brief and problems and custodial rights of father in India.

EVOLUTION OF CHILD CUSTODY LAWS IN INDIAN LAW :

Traditionally father’s have been considered as sole guardian of child and property of the child. The authority of the father in every aspect of child including conduct, education, religion, maintenance etc. Was considered absolute and even the courts refused to interfere with the same. Mother’s have no authority over children since they don’t have any independent legal status and their identities being forged from their native to husband after marriage. Later divorce have become easy and possible and mother’s have become independent with their own identity and legal existence and residence this made courts to recognise about custody.

In 18th century we were still under British rule so most of the laws we followed at that moment were mainly enacted by Britishers according to their laws later we have moulded and amended those laws according to our customs and traditions

The Custody of Infants Act -1873 allowed mother’s to have child custody over a child till the age of sixteen and removed the restrictions on petitions made by mother’s committing adultery.

The Guardianship of Infants Act -1886 recognised equal rights of mother over custody and testamentary guardian and allowed court to remove and appoint guardians under specific circumstances.

The Guardianship of Infants Act -1925 put claims of mother and father about custody dispute on equity level and provided welfare of Infant shall be first priority.

Finally Guardianship of Minors Act -1973 conferred same rights to mother that the common law given to father.

Legislations governing child custody under different law’s in India :

After independence India being a secular nation has different religions to follow and this lead to have every religion their own personal law set for child custody which determines the process by which a parent seeks the custody of their child.

First the Guardianship and Wards Act -1890 is an universal law which solves issues involving child custody and guardianship in India, irrespective of religion the child belongs to.

As we know India being a secular nation practices different religion namely Hindu, Islam, Christian and Parsi etc. Hence every religion has their own personal laws for child custody which determines the process through which parents can seek the custody of their child.

Custody of child under Hindu Law:

The laws associated under Hindu Law namely Section 26 of Hindu Marriage Act -1955, Section 38 of Special Marriage Act -1954 and Hindu Minority and Guardianship Act -1956 describe the reforms and regulations set for seeking of child custody by parents.

Custody of child under Muslim Law:

According to Muslim Law, only mother or any other females like grand mothers, maternal aunt, great aunt, full sister, consanguine sister, paternal aunt etc. Holds the ultimate right to seek custody of child under the Right of Hizanat until she is not convicted or found guilty of any kind of misconduct.

Custody under Muslim Law is with mother or female members is until the child attained age of seven for a boy and attained age of puberty for a girl.

Custody of child goes to father only on two conditions which are attaining age of child up to which mother or females are entitled to custody or in the absence of mother or other females who have the right of Hizanat.

Custody of child under Christian Law:

According to Christian Law custody of child belongs to parents when they follow the reforms and laws set under Section 41 of the Divorce Act -1869 and Section 42-43 holds the right to decide child custody with respect to separation or divorce has been passed.

Custody of child under Parsi Law:

According to Parsi Law child custody is dealt with provisions of Guardians and Wards Act -1890. It mainly cares about welfare of child according to that it gives custodial rights to one of the parents.

TYPES OF CHILD CUSTODY :

A court of competent jurisdiction

Physical Custody:

In this type of custody child is handed over to custodial parent for living and other parent have the right to visit, meet and interact with the child at regular intervals.

Joint Custody:

In this type of custody child lives with both the parent on rotational basis and duration of child’s stay may vary from weeks to months based on mutual agreement between separated parents.

Sole Custody:

In this type of custody child is handed over entirely to one parent in case the court finds the other parent to be abusive, unstable, offensive or incapable of upbringing the child.

Third Party Custody:

In this type of custody a guardian or third person gets the custody of the child from court instead of biological parents. This is often termed as non parental custody.

CUSTODIAL RIGHTS OF FATHER :

As of now we know laws governing child custody in India and here we get to know about custodial rights of father in India and it is main objective of our article and in my point of view despite of having laws to govern child custody in India there are biased decisions have been taken by the courts. This biased decisions are in favour of mother’s and it shouldn’t be in that way. To eliminate this biased decisions I would like to enlighten the rights of a father for getting child custody.

When ruling on this the family courts must maintain the child’s best interests in their minds. In the context of family law legal custody is a form of child custody that gives a parent the authority to make long term choices about their children. At the present, most courts attempts to grant child custody to one parent. This is so true where one of the parent is deemed to unfit to make decisions on behalf of the child.

Custody fights for father are difficult at times, while most courts have rejected older notions that the mother is always primary care giver. Many mothers and other members of society still believe and follow this. However, there are some circumstances in which a father can claim custody or even full custody of a child by proving any of the reasons given below.

The fathers receives custody in the following ways:

In our country no one is considered as best as mother for care taking of a child. Unfortunately, this is not always the case. Even though mothers are given first priority when it comes to custody the fathers might obtain it in the following ways:

Mostly in our country we get to see custody of a child for father when mother agrees to relinquish custody of child but not on the basis of who is fit to take care of the child.
If the mother is unable to take care if the child, the child will be given to the father.
If the child is minor and shows a desire or interest to live with father the court will give it to him.
If the mother has a bad reputation which might harm child then the custody is given to the father.
If the father can demonstrate the mother’s financial incapacity to take care of child and will have an impact on child’s upbringing in the future, as well as his financial ability to take care of the child.
If the father proves or shows that the mother history is shady and it will impact on child’s upbringing or mental and physical development jeopardized if the child stays with the mother.
If the mother is convicted then the child custody will be give to the father.
The presence or absence of a fathers name on birth certificate of a child have major influence on his parenting and custodial rights.
Legal father of the child have different custody rights.
If the individual is not the biological father of the child and if their name appears on birth certificate courts may award them custody rights.
If fathers name is not on the child’s birth certificate they may need to take paternity tests to show that they are biological father of the child.
It is because children are more attached to their mothers and when father’s seeks for custody of child he must consider his child’s wishes for where child wants to live.
Custody battles are very traumatic and exhausting experience for children and so the first priority of a father should be to ensure that everything he is doing for his children is for their best interests.

CASE LAW:

ROHIT THAMMANA GOWDA VS. STATE OF KARNATAKA & ORS.( CIVIL APPEAL NO 4987 OF 2022.)

FACTS OF THE CASE:

In the instant case Rohit Gowda father of minor child born in USA . Father was residing over two decades and later his wife joined after marriage and obtained green card and their son was born and he was naturalized American citizen. Many conflicts have raised in thier marital relationship and mother of child come to Bengaluru in India with child without consent of father and took child into her custody illegally. Reaching of father in India he have realized mother and child are missing from matrimonial house.

Father complained at office of children’s issues USA stating his child was kidnapped and he filed Habeas Corpus writ petition before High Court of Karnataka, but the decision was given in favour of mother and he had to approach the Hon’ble Supreme Court. He also filed custody petition in superior court of Washington.

CONCLUSION:

The case involved the question of custody of a child. The claim for custody of minor child should be decided on what would be in the best interest of the child concerned. As per Supreme Court a consideration of the point of view of welfare of child would be only support the order of return of child to USA.

Landmark Judgments where father gets Child Custody:

1.Mridangra J. Hira Lal Suchak V. Neena M Suchak

2.Ms. Kala Aggarwal V Suraj Prakash Aggarwal & ORS.

3.Sanju V. Sobhanath

4.Shaleen Kabra vs. Shiwani Kabra

Smt. Rama V. Anil Kumar Joshi
Ram Murti Chopra and Anr. Versus Nagesh Tyagi
Y. Varlakshmi V. Y. Kanaka Durga Prasad
Farjanbi V. Sk. Ayub Dadamiya
Tara Chand Mavar V. Basanti Devi D.B.
Lekh Raj Kukreja V. Raymon

CONCLUSION:

In my point of view about child custody and problems faced by a father to get child custody are biased in nature this is due to our deep rooted thoughts that only mother can take care of his child and no other persons are fit to take of the children including father too, because of this knowingly or unknowingly judgements given in case of child custody are more favour to mother’s . As we have different laws governing child custody issues but at certain point they won’t act as they should act like. Giving child custody to father have its own pros and cons. In day to day life we see many crimes against girl child’s have been attempted by their own family members and it arises an issue of giving child custody to a father which is valid point but it can’t be taken into consideration in all cases to my knowledge. Although Courts give equal opportunity to put their points before court why they are eligible to grant child custody and how fit they are for this most of the decisions are given in favour to women it is not fault of law it is fault of our thoughts. Even though we follow law but the judgement is given by a human being only which is most important point to be noted. By this I conclude my article.

REFERENCES: