In India, the law does not provide any special provision regarding the custody of girl child. The law generally provides the criteria and procedures to be followed by the Court while dealing with child custody. However, the Muslim Personal law provides the specific provision that mother is entitled to the custody of her male child until he has completed the age of seven years and of the female child until she has attained puberty (i.e. at the age of 14or 15 years generally) unless found guilty of misconduct. Section 6 of Hindu Minority and Guardianship Act, 1956 provides that custody of minor child who has not completed 5 years shall naturally be with mother. Except these two specific directions, all the custody laws provide that best interest of child or welfare of child should be the paramount consideration for Court while deciding custody. These two specific directions can be ignored by Court if it conflicts with best interest of child.

A Petition to get child custody is made under Section 26 of Hindu Marriage Act, 1955 or Section 7 of Guardian and Ward Act, 1890 (especially in case of Muslims, Christians and Parsis).

Section 17 of Guardian and Ward Act provides that the Court should consider the personal laws to which child is subject and welfare of child. So the Court tries to strike a balance between all laws and grant custody for the better interest of the child.

Section 13 of Hindu Minority and Guardianship Act, 1956 and International legislation of Convention on Rights of Child held in 1989 also provided the best interest of child as a factor to be considered by the Court for custody.

So in India, the main criterion to decide the custody of a girl child is her best interest. The parent in whose custody, the child’s best interest can be ensured will get the custody. Usually in many matters the Court has granted the custody to mother especially in cases of girl Childs. But it doesn’t mean that father cannot have the custody. In recent judgment DSG vs. AKG, on 16 December 2019, three judge bench of Supreme Court including Mr. Justice U.U. Lalit, Ms. Justice Indu Malhotra and Mr. Justice Krishna Murari granted custody of the minor daughter to the father, and visitation   rights   to   the mother while upholding the principle of best interest of child.

Marriage is sacrament and divine in Shastra. Due to this fact, Divorce was not present in ancient Hindu law. However, there was one more thing, which was necessary to be considered, and it was “happiness”. In absence of it, marriage was just a burden. So, it was necessary to introduce a way, to end it like any other relationship, in law and this lead to the introduction of “Divorce” in Hindu Law by the Hindu Marriage Act, 1955.

While enacting this law, legislature considered the fact that society always treated marriage as a sacred bond, and it should not be allowed to end for the personal and selfish reasons. It was in the best interests of the society that there should be safeguards surrounding the marriage to have stability of life and should end only for grave reason. Divorce should not be encouraged. Therefore, legislature allowed the divorce only on some special grounds by the court. Let’s move on to the type and procedure of divorce in Hindu Law.

Types of divorce in Hindu Law

In India, there are two types of Divorce and procedure is different for each type so, it is important to know about them before knowing the procedure.

1. Mutual Divorce: In this, both parties want the divorce and agree to get it together (Mutual Consent). The petition for this divorce can be filed only if the parties are living separately for one year or more, as per Section 13B of the Hindu Marriage Act, 1955.
2. Contested Divorce: In this, only one party either husband or wife, wants the divorce and can get it on some special grounds as per Section 13 stated below like:

• Adultery (voluntary sexual intercourse with another person i.e. outside the marriage);
• Cruelty;
• Desertion (deliberate abandonment of spouse without other’s consent and reasonable or just reason) for more than 2 years continuously;
• Religious conversion;
• Unsoundness of mind;
• Leprosy;
• Venereal disease;
• Either spouse is unheard for 7 years or more by those persons(relatives and acquaintances) who would naturally have heard of it if, was alive;
• No resumption of cohabitation i.e. living together after one year or more of judicial separation granted in a decree passed by the court under Section 10 of the Hindu Marriage Act;
• No restitution of conjugal rights i.e. non-performance of marital duties and rights between the husband and wife for a period of one year or more even after the decree has been passed for restitution of conjugal rights by the court.

Wife can also get the divorce on following grounds like:

• Rape;
• When she has been awarded maintenance by the court and living separately from his husband for more than one year from such award;
• When she married before getting 15 years old and has repudiated it between the age of 15 and 18 years.

Procedure for Divorce

In mutual divorce, the following procedure will be followed:

1. Filing of joint divorce petition before family court of the district (where the marriage happened, or where husband and wife last resided together or where wife resides) through the lawyers of husband and wife.
2. Appearance of parties before the court, examination of petition along with documents by the court and order of recording of statements on oath by the court if satisfied.
3. Recording of statements and passing of order of first motion including grant of cooling period of 6 months. This is the period after which the second motion and final hearings can be started. (This 6 month cooling period can be waived by the court as held by Supreme Court in Amardeep Singh Vs. Harveen Kaur on 12.09.2017e. husband and wife need not to wait for 6 months and can get divorce).
4. After 6 months, if no reconciliation between husband and wife, both parties will appear for final hearings or second motion and court will pass the divorce decree if satisfied. (Husband and wife should appear for final hearing or second motion within 18 months of filing of divorce petition). In case 6 month period get waived off, no need to wait for 6 month to start the second motion.

In contested divorce, the procedure will be as follows:

1. Filing of divorce petition before family court of the district where wife resides, where marriage happened or where both reside by either wife or husband. In case spouse of petitioner lives outside India then, where the petitioner resides.
2. Examination of petition by court and if satisfied will summon the respondent i.e. other party to the marriage.
3. Suggestion of Mediation by the court to both parties.
4. If mediation failed, then court will continue hearings of divorce and will grant the divorce after hearing both sides.

So, the procedure of the divorce is a bit different for the mutual and contested divorce. Also, I would like to add that in case of contested divorce, the court can also grant the divorce on one special ground which is not present in act and that is “Irretrievable breakdown of Marriage”. It was stated in the judgment of the Hon’ble Supreme court held in Srinivas Rao vs. D.A. Deepa, (2013) 5 SCC 226, that “Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable breakdown of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.”