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Deciding factors for the Grant of Custody of Children in a Divorce Case

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Deciding factors for the Grant of Custody of Children in a Divorce Case

The question of custody usually comes up in cases of divorce or judicial proceedings. The Judiciary in India has always given more importance to the interests of the child. Indian laws and regulations for child custody mostly depend on the religion of the child and parents. Personal laws govern the custody of the children along with the guardians and wards acts, 1890. Judiciary in India mostly focuses on the social, and intellectual development of the child, the child must be placed in a healthy environment and amidst a good family.

Courts consider various factors while granting custody for the welfare of the child:
• The child should be imparted proper education by the parties therefore, the court also considers the educational qualifications of the parent, to make sure the child stays in a better environment.

• Ethical upbringing should take place of the child, i.e., the proximity, closeness, and love shared by the child with the parent.

• It is important to provide safe-keeping to the child, therefore courts must consider the mental and physical well-being of the parents, also the intention of the custodian, to make sure that the child is not harmed.

• Court also considers the economic security of the guardian, as the financial stability of the custodial parent is important for the betterment of the child.

• Court considers the overall behavior and conduct of the custodian parent to make sure that the child is confortable with the parent, however, the court also considers the child’s desire to choose for themselves, to know whether the child is comfortable with the mother or the father.

The Hon’ble Supreme Court in the case of Sheoli Hati v. Somnath Das AIR 2019 SC 3245 observed that any decision regarding custody or other issues about a child would only be taken considering the welfare of the child. The custody of the child is only given to either of the parents if these conditions are met. But what do you understand by custody?

Child custody is a legal right granted to the parent of a child to make important, long-term decisions regarding their child including decisions on education, medical care, and also financial decisions. The parent whom custody would be granted by the court will be the primary caretaker of the child and would be responsible for the emotional, medical, and educational needs while the non-custodial parent will have the right of access. There are three kinds of custody:

  1. Physical Custody: Physical custody is awarded to a parent who undertakes all the day to day activities. It implies that the minor is under the guardianship of that parent with visitation from the other parent. Joint physical custody is when both parents can take care of the child but only one parent has physical custody. In Joint physical custody, both parents have equal rights over the child.
  2. Sole Custody: In sole custody, only one parent is the caretaker of the child. Sole custody is mostly granted when the other parent is abusive, unstable, violent, or incapable. In sole custody, the entire rights of the child are vested with only one parent who gets the physical custody of the child.
  3. Third Party Custody: In some cases, the court grants all the rights to the third party, and neither of the biological parents is given custody of the child.

The Hindu Marriage Act, Special Marriage Act 1954, and Hindu Minority and Guardianship Act 1956 deals with the custody of children in Hindu Law. Section 26 of the Hindu Marriage Act, 1955 deals with the maintenance, caring, and education of the child. Under this act both the parents filing for custody of the child must be Hindus. The court, in this case, can dispose of the pending decree within 60 days from the date, notice has been served from the court. Under Section 38 of the Special Marriage Act, 1954, authorizes the custody of the child where both the parents are from different religions or have undertaken a court marriage.

Under this Act, the Family Court can pass orders, and pass judgments for the maintenance of the child and can dispose of the pending decree within the 60 days from the date, notice has been served from the court. As per the Hindu Minority and Guardianship Act, 1956 only biological parents can seek custody of their minor child, provided that he/she is a Hindu. Under this statute, the Hindu child below the age of 5 years would be kept under the custody of the mother for proper emotional, moral as well as physical support to the child and for above the age of 5 and below the age of 18 years, the custodial right is given to the father. Supreme Court in Githa Hariharan v. Reserve Bank of India AIR 1999 SC 1149 observed that the mother can be the sole parent of the child and can take custody of the pretext of the husband’s death or his absence.

The Supreme Court in Gaurav Nagpal v. Sumedha Nagpal AIR 2009 SC 557 observed that the word used in section 13 i.e., ‘welfare’ has to be considered literally but nothing in section 13 would take away the rights of the parents. Supreme Court in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari AIR 2019 SC 2318 clarified that the welfare of the child would include various factors like ethical upbringing, economic well being of the guardian, child’s ordinary comfort, contentment, health, education, etc. If any case court finds that both the parents are unable to take proper care of the child then, in that case, the court can award the custody of such a child to close relatives like a maternal grandfather or grandmother. High Court of Kerala in the case of Baby Sarojam v. S. Vijayakrishnan Nair AIR 1992 Ker 277 granted custody of the two minor children to the maternal grandfather, due to the unfit nature of the father of the children. In the case of an illegitimate child, the custody resides with the mother itself. The Apex Court in ABC v. State of NCT of Delhi AIR 2015 SC 2569 observed that the primary custodial rights are vested with the unwed mother in case of an illegitimate child and the father does not have equal rights compared to the mother.

Guardians and Wards Act, 1890 is a secular law i.e., every religion can claim custodial and guardianship rights under this statute. However, custodial rights and guardianship are different terms. Custody is given to have control over the child, while guardianship is related to trusteeship. In these circumstances, the guardian has more onus to prove compared to the custodian. There has been a lot of controversies in the case, where the mother is not able to take care of the child, due to a lack of financial resources. In these circumstances where the mother is in a weaker financial condition and the father is remarried and has children from other marriages than in that case, the father of the child has to provide maintenance for the welfare of the child.
Authored By: Adv. Anant Sharma & Aditi Bhawsar

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