Generally the law, under which the petition to decide child custody is filed to the Court, guides the Court on how to determine it. The Christians, Muslims and Parsisusually file petition under Section 7 of Guardian and Ward Act, 1890, as regards custody, that law is applicable on them. Court can also grant interim custody in Section 12. In case of Hindus and Muslims personal laws are also present with Guardian and Ward Act to guide the Court. So, the Court tries to strike a balance between all laws while deciding custody.
Section 17 of the Guardian and Ward Act, directs the Court to determine child custody while considering the personal laws to which child is subject and welfare of child. For E.g. Hindu law for Hindu child and Muslim law for Muslim child. The welfare of the child is to be decided by considering age, sex and religion of the child, the character and capacity of the proposed guardian(e.g. Parent or any another person who wishes to take custody) and his nearness of kin to the minor(Generally, this is considered in case of custody dispute between a parent or any other relative), the wishes, if any, of a deceased parent (in case of death of one or both parents), and any existing or previous relations of the proposed guardian with the minor. If the minor is old enough to form an intelligent preference, the Court may consider that preference. The Court shall not appoint or declare any person to be a guardian against that person’s will.
As per Section 19 of the Act, the Court cannot decide the child custody where:
- The minor child is married female and his husband is not unfit as her guardian.
- The minor child is not married female, and his parents who are living are not unfit to be guardian.
- The minor child’s property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.
Now Hindu law provides the two Acts which guides the Court while deciding custody and they are:
- Hindu Marriage Act, 1955.
- The Hindu Minority and Guardianship Act, 1956
If the application is made under Section 26 of the Hindu Marriage Act, then this Section directs that the Court can decide the custody of the child as it deems just and proper for the maintenance, education and custody of such child consistent with their wishes.
Section 6 of Hindu Minority and Guardianship Act, 1956 states that:
- In case of boy or an unmarried girl, the father is natural guardian and after him the mother. However, the custody of minor child who has not completed age of five years shall ordinarily be with mother;
- In case of illegitimate boy or an unmarried illegitimate girl, the mother and after her father.
- In case of adopted son, the adoptive father is natural guardian and after him mother.
A person is not entitled to have custody if he has converted religion or has renounced the world and Section 13 of the Act states that welfare of child to be paramount consideration while deciding guardian or custody.
Under Muslim law the mother is entitled to the custody of her malechild until he has completed the age of seven years and of the female child untilshe has attained puberty( i.e. at the age of 14 or 15 years generally) unless foundguilty of misconduct. Otherwise the father is natural guardian. In absence of father, executor of father, grandfather or executor of grandfather will be the natural guardian. In conflict between Guardian and Ward Act and Muslim law, Guardian and Ward Act prevail.
So, basically the welfare of child is primary factor which Court considers while striking balance between all laws.