This article has been written by Ms._ISHA BHARTI, a 3rd-year student of B.B.A., LL,B(Hons),  CMR UNIVERSITY- School of Legal Studies, Bangalore. 

 

ABSTRACT: 

Custody battles in Hindu marriages are a complex issue that can arise due to various reasons such as divorce, separation, or the death of a spouse. In recent years, there has been a growing trend of joint custody, where both parents share the physical and legal custody of the child. This article aims to provide an in-depth analysis of the legal framework, factors considered in custody battles, types of custody, challenges, resolutions, and recent legal developments related to child custody conflicts. In India, the legal landscape regarding child custody within Hindu laws in India navigates through several factors, all converging towards the singular, pivotal consideration: the paramount welfare of the minor child. The resolution of legal intricacies centers on ensuring the child’s welfare and social security, prioritising their well-being above all legal complexities.

 

Keywords: Child Custody, Hindu Marriages, Legal Precedents, Welfare Considerations, Guardianship Rights, Judicial Framework

INTRODUCTION: 

Custody entails the allocation of rights for raising a minor child to a parent. Typically, under ordinary circumstances, both parents inherently share joint custody of their child. However, in situations where parents undergo separation or divorce and are no longer cohabiting, either parent reserves the right to seek sole physical custody of the child. This arrangement designates that only one parent will have exclusive custody and responsibility for the upbringing and care of the child.

In India, both parents hold legal rights to their child. Consequently, the mother possesses the right to nurture and look after the child, including entitlement to visitation. Similarly, the father enjoys equal rights in raising and caring for their children but doesn’t automatically hold visitation rights. Courts don’t determine custody based on which parent seems more suitable for child care; rather, it tends to create a balance between both parents. This system of custody originates from societal perceptions that view women as the weaker gender, leading to the inclination to grant legal rights to mothers, given the prevailing notion that they should primarily care for children. At the same time, fathers are expected to be the primary providers by working and ensuring financial support for their children.

Custody battles in Hindu marriages are a complex issue that can arise due to various reasons such as divorce, separation, or the death of a spouse. The custody of minor children is regulated by the Hindu Minority and Guardianship Act of 1956, together with the Guardians and Wards Act of 1890.  These acts provide for three broad categories of custody: sole custody, joint physical custody, and third-party custody. Custody disputes can also arise in cases of cross-religious marriages, where the personal laws of both parents may differ.

The issue of child custody is a sensitive and emotional one, and it is essential to understand the legal framework and principles governing it. The Hindu Marriage Act, 1955, and other relevant laws provide the legal framework for Hindu marriages. The sanctity of Hindu marriages is derived from religious, cultural, and social perspectives, and they are celebrated with various ceremonies and rituals. In recent years, there has been a growing trend of joint custody, where both parents share the physical and legal custody of the child. Joint custody is seen as a way to ensure that both parents have an equal say in the child’s upbringing and to minimize the impact of the divorce or separation on the child. However, joint custody is only sometimes feasible, especially if the parents live in different cities or have a strained relationship. 

This article aims to provide an in-depth analysis of the legal framework, factors considered in custody battles, types of custody, challenges, resolutions, and recent legal developments related to custody battles in Hindu marriages.

 

CONCEPT OF CHILD CUSTODY IN INDIA: 

 

Why is Child-custody important as per Indian law court?

• While determining the custody, Indian Courts would achieve two main objectives.

• The welfare of the child.
• The welfare of society.

In India, the legal landscape concerning child custody reflects a reluctance on the part of courts to unilaterally determine matters regarding the welfare and custody of children. Child custody falls under the purview of state regulations in India, resulting in each state having its distinct set of rules governing these issues. Joint custody stands as a prevalent preference over sole custody among many in India. Importantly, there’s no obligatory mandate for parents to share custody of their children; it remains a voluntary decision. In cases where parents are unable to reach a consensus regarding joint or non-joint guardianship, the court intervenes to determine who shall be granted full custody of the child. Typically, if an amicable agreement cannot be reached, the court solicits input from both parents to ascertain their respective preferences and perspectives.

Under the Hindu Minority and Guardianship Act, a child below the age of 5 is ordinarily placed in the custody of the mother. However, should the court find the mother unsuitable for the child’s care, custody may then be awarded to the father or another suitable guardian. For children aged above 5, the legal framework allows for a broader discretion. While the mother is typically favored due to the presumption of her being the primary caregiver, courts retain the authority to grant custody to either parent based on the circumstances presented. Factors influencing such decisions vary but often revolve around the best interests and welfare of the child. The Apex Court established a fundamental legal principle emphasising the paramount interest of children below 5 years in the care of their mother. The Court notably highlighted the indispensable need for a child’s affection from their mother, asserting that no adequate substitute exists for this crucial bond.

Moreover, the Apex Court critiqued the High Court’s approach, deeming it erroneous in its interpretation of the proviso to Section 6A of the Minority and Guardianship Act, 1956. The Court emphasised that the High Court had failed to properly address the matter, indicating an incorrect perspective in overlooking the significance of the aforementioned proviso. Courts consider multiple aspects when determining custody arrangements. These factors encompass the child’s age, educational needs, emotional and physical well-being, the stability of the parent’s environment, financial capabilities, and the ability to provide a nurturing and conducive atmosphere for the child’s growth and development. In the landmark case of Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42, the apex court emphatically established a pivotal principle governing custody disputes involving minor children. The essence of this principle revolves around the paramount consideration of the welfare of the child, transcending the statutory rights of parents outlined in prevailing legislation. The court underscored that the determination of custody and guardianship of a minor child must primarily hinge upon the overarching concept of the ‘welfare of the child’. This signifies that, in adjudicating custody matters, the foremost and guiding factor should invariably be the best interests and overall well-being of the minor, rather than the mere rights of parents governed by existing legal statutes. This pronouncement echoes a fundamental ethos within family law, reinforcing the imperative to prioritise the holistic welfare of the child above all other considerations when deliberating upon matters of custody and guardianship.

 

• TYPES OF CUSTODY: 

1. Physical Custody: One parent has guardianship while the other has visitation rights, ensuring a nurturing environment for the child.

• In the case of B. Kishore v. Manju alias Manjula (1999) 3 MLJ 269, the Honourable Madras High Court established a significant legal precedent. The court ruled that if a petitioner exhibits habitual alcohol consumption, it poses a threat to the welfare of the child. Consequently, in such instances, immediate denial of custody for the minor child becomes imperative to safeguard their well-being. Moreover, the petitioner’s lack of steady income and failure to provide adequate attention and affection to their son were considered detrimental factors. The court reasoned that leaving the child in the custody of such a petitioner could adversely impact the child’s future, including their education and overall development. In light of considerations about the child’s welfare, education, and maintenance, the court deemed it fitting for custody to be granted to the respondent, the mother. The court recognised the mother as the natural guardian capable of ensuring the best interests and proper care for the minor. 

1. Joint Custody: Both parents share decision-making rights, suitable if they have different interests or are unsure about the child’s upbringing location.
2. Special Guardianship: Legal custody given to a non-biological guardian by mutual parental agreement.
3. Guardianship of Minor Children: One parent has full care, maintenance, and education responsibility while the other has visitation rights.
4. Partial Custody: One parent cares for the child without involvement from the other, permitted for children under 18, subject to providing adequate care.
5. Determination of Custody: Courts decide custody arrangements based on conditions, granting physical and legal custody to one parent until a final order.
6. Custody Rights: After divorce, either parent can claim custody; in extreme cases, grandparents or relatives may seek custody.

• Step-Mother vs. Custody: Economic status alone doesn’t preclude a mother from custody; courts typically favour the mother’s custody over the stepmother’s, ensuring the child’s well-being.

 

• THE DIFFERENCE BETWEEN GUARDIANSHIP RIGHTS AND CUSTODY RIGHTS?

In legal terms, custody and guardianship represent distinct concepts. Custody specifically refers to the nurturing, daily care, and supervision of a minor. It involves the day-to-day responsibilities and control over the minor’s well-being. On the other hand, guardianship encompasses broader rights concerning the minor’s person and property. It includes the authority to make decisions regarding the minor’s physical well-being as well as the management and disposition of the minor’s property. Guardianship extends to the power to handle the minor’s assets for their needs and welfare.

 

• LAWS FOR HINDUS IN WHICH CUSTODY OR GUARDIANSHIP IS GRANTED?

Hindus seeking custody or guardianship of a child can file under two primary legal provisions: Section 26 of the Hindu Marriage Act, 1955, or Section 7 of the Guardian and Ward Act, 1890. The law under which the petition is filed serves as a guide for the court in determining the case. However, even if the petition is lodged under Section 26 of the Hindu Marriage Act, the court must duly consider the provisions outlined in both the Hindu Minority and Guardianship Act, 1956, and the Guardian and Ward Act, 1890 when adjudicating custody matters. Balancing the provisions of personal law and central law becomes crucial for the courts when deciding custody. Both laws provide substantial authority to the courts, placing the welfare of the child as the primary and common consideration for determining custody.

This guiding principle is reflected in:

• Section 7 and Section 17 of the Guardian and Ward Act, 1890.

• Section 13 of the Hindu Minority and Guardianship Act, 1956.

Moreover, Section 17 of the Guardian and Ward Act stipulates that the court should take guidance from the personal laws applicable to the minor child when making decisions regarding custody.

 

• FACTORS TO BE CONSIDERED BY THE COURT WHILE GRANTING CUSTODY?

The court considers various factors while determining custody, always with the paramount focus on the welfare or best interests of the child. Our Supreme Court and global legal practices consistently uphold this principle, as highlighted in cases like Sheoli Hati vs. Somnath Das, (2019) 7 SCC 490, affirming that the child’s welfare stands as the primary consideration. It’s essential to note that neither the welfare of the father nor the mother takes precedence; instead, the sole paramount consideration for the Court is the welfare of the minor, as articulated in Saraswatibai Shripad Vad vs. Shripad Vasanji Vad, 1940 SCC OnLine Bom 77.

Factors crucial to the court’s assessment of the child’s welfare include:

• The Age, sex, or religion of the child.
• Moral character, maturity, judgment, and capacity of the parents.
• Parent’s ability to maintain involvement in the community.
• Child’s preference, if old enough to express it.
• Past or present relationship, attitude, and behavior of the parent towards the child.
• Educational provisions and opportunities offered by the parent.
• Child’s growth, safety, and health.
• Financial and mental stability of the parents.
• Mental and physical well-being of the child.
• Child’s comfort in the environment.
• Intentions of the parent seeking custody.

These factors serve as benchmarks for the court to assess and determine custody, ensuring that the ultimate decision aligns with the child’s best interests.

 

• WISH OF CHILD

In the case of Vikram Vir Vohra v. Shalini Bhalla (2010) 4 SCC 409, the Honourable Apex Court highlighted a significant factor regarding child custody. The court underscored the importance of considering the child’s preference when determining custody, as it directly correlates with the child’s well-being. Emphasising the child’s wish to reside with their mother, the court observed that the child, aged approximately 8-10 years, is at a crucial developmental stage. The court reiterated that the welfare of the child stands as a paramount concern in custody matters, sometimes outweighing statutory provisions. This acknowledgment reiterates the court’s commitment to prioritising the child’s best interests, even if it means deviating from established legal norms or statutes.

 

• POWER OF THE COURT- SECTION 26(HINDU MARRIAGE ACT)

Under Section 26 of the Hindu Marriage Act, the court holds the authority to issue interim orders and decree provisions concerning child custody, guardianship, maintenance, and education. It aims to align with the child’s preferences, if feasible and remains open to subsequent applications post-decree for adjustments in custody, maintenance, or education as if the proceedings were ongoing. The court retains the power to modify, suspend, or annul previous orders regarding child custody, reflecting the evolving circumstances or the child’s best interests.

It’s noteworthy that the court’s decision on child custody is not absolute but subject to review based on the child’s wishes and other pertinent factors that ensure their welfare.

In terms of time frame, the court is mandated to resolve such applications within 60 days from the issuance of summons to the Respondent.

 

• MAINTENANCE OF A CHILD CUSTODY: 

 

When it comes to child maintenance, there’s no defined limit in personal or central laws governing claims against parents or relatives. The court determines the maintenance amount based on what it deems fair and suitable, considering the child’s welfare and the circumstances of the case.

 

Several factors guide the court’s decision in granting maintenance:

• Parent or relative income.
• Earning capacity, property, and financial resources of each parent.
• Financial obligations and responsibilities of each parent.
• Age of parents or child.
• Childcare expenses, including medical costs or insurance premiums.
• Standard of living of parents and child.
• Any other relevant factors in the case.

 

Concerning child support, women may be obliged to pay if they earn and the child’s custody is with the father. The law remains neutral regardless of gender.

It is essential part that in case of Non-payment of child support might not automatically revoke visitation rights, but the court may suspend them until arrears are settled. Moreover, the court considers non-payment during custody decisions, which could impact the outcome. Timely child support fosters a sense of love and support from both parents, influencing the child’s well-being.

Deciding child custody is a complex task for courts, especially in cases involving foreign court orders. Courts take precautions to prevent any negative impact on the child, prioritising their welfare above all else.

 

CONCLUSION: 

Child custody within Hindu laws in India navigates through several factors, all converging towards the singular, pivotal consideration: the paramount welfare of the minor. This encompassing welfare covers critical aspects such as education, maintenance, and the child’s basic needs. The court holds the authority to revoke custody should it find the guardian’s conduct not align with the child’s well-being. Seeking specific guidance on child custody matters is prudent; consulting a specialised family lawyer well-versed in this realm can provide invaluable assistance.

 

India’s cultural fabric cherishes familial ties and child care, esteeming children as blessings. However, when parental relationships dissolve, custody becomes a profoundly intricate and sensitive matter predominantly governed by judicial decisions.

Amidst the interplay of diverse religious and uniform state laws, controversies often arise. Yet, the ultimate focus should never waver: safeguarding a child’s future. The resolution of legal intricacies centres on ensuring the child’s welfare and social security, prioritising their well-being above all legal complexities. Addressing and remedying any legal issues must revolve around securing the child’s best interests.

REFERENCES: 

1.   This article was originally written and published on Pinklegal- hindu custody. The link for the same is herein: https://pinklegal.in/topics/marriage-and-divorce/hindu-custody.html 
2.   This article was originally written by Vidhikarya and published on Legalservice India. The link for the same is herein:https://www.legalserviceindia.com/legal/article-710-child-custody-laws-in-india.html 
3.  This paper was authored by Mukesh Kumar and published on tutorialspoint.com. The link for the same is herein: https://www.tutorialspoint.com/custody-of-children-section-26-of-the-hindu-marriage-act-1955.
4.  This information was provided by Jitasha Bahl and published on lawdocs.in. The link for the same is herein: https://lawdocs.in/blog/what-are-the-factors-which-constitute-the-welfare-of-the-child-in-a-custody-case-in-india .