This article has been written by Ms. Kumari Komal, a IIIrd year student Pursuing B.A.LL.B. at Lloyd School of Law, Greater Noida.

ABSTRACT: 

Child Custody Battles are a complex interplay of legal, emotional, and child-centric dynamics. These disputes often arise amid divorces or separations, entangling parents in fervent contention over the custody and well-being of their children. Central to these battles are diverse considerations, including the primary caregiver, living stability, and the child’s preferences. Legal determinations hinge upon assessing parental capabilities, emotional bonds, and the nurturing environment each parent can provide. Factors such as work schedules, financial provisions, and past histories are pivotal elements weighed in custody determinations. Yet, these battles extend beyond legal parameters, infusing emotional strain on all parties involved, especially the children. The conflict often invokes profound psychological impacts, rendering children unwitting participants, torn between loyalty to both parents. Courts employ meticulous evaluations, seeking to ensure the child’s safety, emotional well-being, and optimal development.

INTODUCTION:

Marriage as a basic institution has been described as one of the important and fundamental relationship. Marriage is found to be one of the strongest correlates of happiness and well-being. This union establishes various rights and obligations between the spouses in order to coexist. However, conflicts in marriage are inevitable. Conflicts may arise due to several reasons such as unfulfillment of expectations, lack in performance of responsibilities, differing perspectives, spouse abuse, sexual abuse, incompatibility and so on. These conflicts if not handled properly, causes friction and eventually disruption of marriage. In common language this disruption of marriage is known as divorce.

Divorce is a very common outcome of marriage nowadays. But earlier, the concept of divorce did not exist as Hindu marriage between two people was considered as a sacred union which lasts till eternity. Once it came to be established that marriage is a civil contract, it was a logical step to recognize that it was also a dissoluble union. However, as marriage is also regarded as a social institution and not merely a transaction between two people, therefore it was argued that there was a social interest in preservation and protection of the institution of marriage. Thus, marriage was regarded as a special contract and so it could not be put to an end like an ordinary contract. But still there was a way by which could be ended if the parties wish to do so. 

Marital conflicts or incompatibility leads to divorce which not only effects the spouses; its effect goes beyond the individuals who dissolve the marital union. It has its consequence over their children and other relatives too. They share the potential consequences and exposed to various psychological problems, especially the children. The major challenge which arises next is with respect to the custody of the minor children as they are unaware of their rights and obligation. Child custody is a legal procedure that divides parental responsibilities and creates the best environment for the child. Obtaining a child custody is not a straightforward process.

When both the parents are contesting for child custody, the court will intervene to look at what works bet for the child before granting child custody. Earlier, the mothers were more favoured and were awarded the custody but now, both father and mother have equal rights to claim child custody. It is a form of guardianship. When the custody is decided in any of the cases then it follows the principle of welfare and interest of the child rather than the rights of the parents. This was held in the case of Sheoli Hati v. Somnath Das. In Gaytri Bajaj v. Jiten Bhalla, it was held that appropriate environment that can help the child in it proper upbringing together with the required ability and means of the parents concerned to look after are one out of some of the relevant factors which needs to be considered while deciding the custody of a minor child.

According to the Hindu Minority and Guardianship Act, 1956, the custody of all children below the age of five years is awarded to the mother and in case of a boy or unmarried girl above the age of five, the father gets the custody. Section 26 of the Hindu Marriages Act, 1955 provides for the Court to pass interim orders and make provisions with respect to the custody, maintenance and education of minor children, consistently with their wishes and also to revoke, suspend or vary any orders previously passed. 

There are mainly 5 types of child custody:

1. Physical custody: this custody allows any one of the parents to be the child’s primary guardian. Either the mother or the father has the physical custody which means that the child will stay with that parent only. The other parent will have visiting rights which is decided by the court. In such cases, both the parents have the legal custody of the child. The parent having the physical custody makes the day-to-day decisions regarding the child.
2. Legal custody: generally, both the parents have the legal custody of the child as they both have the right to make all the important decisions of their child’s life. The parents having the legal custody has the right to make the important decisions of the child such the medical treatments, educational institutions and so on.
3. Joint custody: this kind of custody allows both the parents to keep the child for a fixed duration which is on the discretion of the court. Both the parents, turn by turn, can keep their child. By this way, the child is benefited with the support of both the mother and the father.
4. Sole custody: in cases were one of the parents is uninterested or unfit to hold the custody of the child then the other parent gets the whole and sole custody of the child. The child spends most of his time with that parent and that parent can make all the decisions about raising the child without consulting the other parent.
5. Third party custody: there are instances where both the biological parents are not capable to take the child’s custody and third party is given such authority. A non-parent has the legal authority to provide home and take all the important decisions regarding the child’s best interest.

In a custody battle of Hindu divorce, the court has to consider various factors such as who will be the primary caregiver, who has the financial stability to make living arrangements for the child, whom does the child prefer, what are the working schedule of the parents, who has a better parent-child relationship, any history of abuse, neglect, etc. in making a decision. The Supreme Court held in Gaurav Nagpal vs Sumedha Nagpal that the moral and ethical welfare of the child must also be given due consideration along with physical well-being. The court may evaluate these parameters, interview the child, or provide an assessment by the social workers or psychologist to determine the best interest of the child. During the process, emotions can run high, and both parents might present evidence and arguments to support their case. Custody battles can be emotionally draining for everyone involved, especially the children, who may feel caught in the middle. Ultimately the court reaches to conclusion prioritizing the well being and safety of the child.

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.

Another parameter around which the child custody revolves is the financial security along with the maintenance of the child. Child maintenance is the financial support provided by one parent to the other for the upbringing and care of the child. It is aimed at ensuring that both parents contribute financially to the child’s well-being. The amount of child support can depend on various factors such as each parent’s income and financial resources, the child’s needs, including education, healthcare, and other expenses. Courts often use specific formulas or guidelines to calculate child support amounts based on the parents’ incomes and the child’s needs. The parent with primary physical custody often receives child support payments from the other parent. However, in joint custody arrangements, the parent with higher income might pay child maintenance to the other parent to ensure the child’s needs are adequately met. Courts typically aim to create arrangements that provide stability and care for the child, even in the midst of parental separation or divorce.

CONCLUSION:

Child custody battles stand as poignant reflections of the intricate complexities woven into family dynamics during times of separation or divorce. These emotionally charged disputes transcend mere legal proceedings, encompassing profound implications for both parents and, most significantly, the children caught in the midst of such contention. Throughout these battles, the courts strive to decipher the intricate tapestry of familial relationships, aiming to delineate custody arrangements that serve the paramount interest—the welfare and well-being of the children. Decisions are not merely about legal rights but hinge on creating nurturing environments that foster emotional stability, support, and opportunities for optimal growth. The adversarial nature of custody battles underscores the need for a holistic approach—one that considers the multifaceted facets of parental capabilities, emotional bonds, and the child’s unique needs.

Achieving resolution demands a delicate balance between legal frameworks and empathetic understanding, recognizing the indelible impact of these battles on the children’s lives. In essence, a custody battle should herald not just a legal decision but a pathway toward fostering harmonious relationships and ensuring a nurturing environment where children can thrive, grow, and flourish despite the upheavals that familial separations may bring. Ultimately, it is the well-being and happiness of the children that must remain at the forefront of all decisions and resolutions.

REFRENCES:

BOOKS:

• Dr. Paras Diwan, Modern Hindu Law, ISBN-13: 9789391787554, 26th Edition

• Dr. S.R. Myneni, Hindu Law, ISBN-13: 9789394739420, 2nd Edition

BARE ACTS:

• The Hindu Minority and Guardianship Act, 1956
• The Guardians and Ward Act, 1890
• The Hindu Marriage Act, 1956

CASE LAWS:

• Sheoli Hati v. Somnath Das (2019) 7 SCC 490
• Gaytri Bajaj v. Jiten Bhalla (2012) 12 SCC 471
• Gaurav Nagpal vs Sumedha Nagpal (2009) 1 SCC 42

WEBSITES:

This article was originally written by Khyati Khemka published on centrik’s website and the link for the same is herein: https://www.centrik.in/blogs/child-custody-on-matrimonial-disputes-and-the-need-to-revamp/#:~:text=under%20Hindu%20law%2C%20the%20father,the%20right%20of%20the%20father

This article was originally written by Kaushik Krishnan published on the website of legal service India and the link for the same is herein: https://www.legalserviceindia.com/legal/article-12960-child-custody-battles.html

This article was originally written by Sneha Mahawar published on the website of iPleaders and the link for the same is herein: https://blog.ipleaders.in/custody-cases-for-divorced-parents-a-legal-analysis/

This article was originally written by Uttkarsh Sharma published on the website of Your Legal Career and the link for the same is herein:  https://www.yourlegalcareercoach.com/custody-post-divorce-vis-a-vis-indian-position/

This article was originally written by Tejaswi Pandit and Manovi Mitra published on the website of SSC Online and the link for the same is herein:  https://www.scconline.com/blog/post/2019/11/25/custody-of-children/

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