An Overview of Child Custody Laws in India

A child means everything to a parent. Every parent wishes for his child to stay with him or her.

Both parents have equal rights over their child and child- custody is one of those rights. Child Custody is the right of a parent to have his/her child living with them. It involves the right of a parent to make decisions about the living conditions, education, and health of a child.

Usually, parents nurture their children together. However, when differences occur between parents, they decide to separate. When do not mutually agree on the custodial terms of their children, the Court’s jurisdiction gets invoked to decide the custody of the parent’s petition.

Also, in case one parent is not alive and the relative of the child – a grandmother or grandfather wants the guardianship of the child instead of allowing the other parent to have custody. In these cases, on the petition of that relative, the Court has to decide custody and guardianship of the child.

Sometimes the Court has taken Suo Motu cognizance i.e. the Court has decided the custody on its own without any application or petition, in cases it found the parents unfit or departed or for the welfare of the child.

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

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

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

Many psychological theories have established that the style of parenting plays an important role. Neglecting children in the early stages of their growth by parents or guardians may develop abnormal behavior in them.

Various factors like parental monitoring, psychological control, parents’ behavior, and negative aspects of support such as rejection, abuse, and hostility would lead to criminal tendencies in young children.

So, the Courts have an important duty while deciding the custody of a child as a child’s welfare and society’s welfare are inter-related.

Children are the future of a nation and a courts better decision regarding custody contributes a lot to the future.

What is the difference between Guardianship Rights and Custody Rights?

Custody is a narrower concept than guardianship. Custody implies the nurture and day-to-day care and control of a minor while guardianship implies the right of a person regarding the minor’s body and property. It involves the right to dispose of the property of the minor for the needs and welfare of the minor.

What are the laws for Hindus in which custody or guardianship is granted?

 Hindus can file for the custody or guardianship of the child under:

1. Section 26 of Hindu Marriage Act, 1955; or
2. Section 7 of Guardian & Ward Act, 1890.

Generally the law, under which the petition is filed, guides the Court on how to determine it. However, even if the petition is filed under Section 26 of Hindu Marriage Act, the provisions of Hindu Minority and Guardianship Act, 1956 and Guardian & Ward Act, 1890 have to be given due consideration while determining custody. The Court has to keep a balance between the provisions of personal law and central law while deciding custody and the Courts are able to do it without any difficulty as both the laws grant immense power to Court by providing the principle of welfare of child as common and foremost consideration to decide the custody under:

• Section 7 and Section 17 of Guardian and Ward Act, 1890.
• Section 13 of Hindu Minority and Guardianship Act, 1956.

Section 17 of Guardian and Ward Act also provides that the Court should be guided by the personal laws of the minor child while deciding custody.

What is the law under which Christians, Sikhs and Parsis file for custody?

 Christians, Sikhs and Parsis file the petition for the custody of the child under Section 7 of Guardian and Ward Act, 1890.

Why does the law generally provide the custody of the child to the mother?

Court has to consider the personal laws to which a child is subject while deciding custody and Hindu law under Section 6 of Hindu Minority and Guardianship Act provides that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Under Muslim law, the 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 14 or 15 years generally) unless found guilty of misconduct. All these laws provide in favor of the mother and the Court considers these provisions while deciding custody.

Many psychological and medical theories have proven that the mother is necessary for a child at infant age. Also in case of girl child it is normally considered that the girls require guidance of their mother. Merely because the mother is a working lady she should not be refused custody of the female child as held in Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka on 4th August, 1982.

So, usually in cases of custody of infant child, small age child and girl child, the Court considers the best interest of child with mother and prefers them over father but it is not necessary that the custody will always be given to mother as, if the Court finds the welfare of child is with father, Court can grant the custody to father too. For instance, In Sheila B.Das Vs P.R.Sugasree, 2006 (1) RCR (Civil) 758 (SC), Supreme Court held that the custody of minor female child was given to the father as per choice of the child with the observation that child was highly intelligent and was in a position to make intelligent choice.

What are the factors which the Court considers while granting Custody?

The welfare of the child or the best interest of the child is of paramount consideration for the Court while deciding custody around the world. Even our Supreme Court has held many times that – While taking a decision regarding custody or other issues pertaining to a child, “welfare of the child” is of paramount consideration, one of the latest example is Sheoli Hati vs. Somnath Das, (2019) 7 SCC 490.

It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the Court. It is the welfare of the minor and of the minor alone which is the paramount consideration, Saraswatibai Shripad Vad vs. Shripad Vasanji Vad, 1940 SCC OnLine Bom 77.

Following are the factors which Court considers while keeping the welfare of child as touchstone:

• Age, Sex or Religion of Child.
• Moral Character, maturity, judgment and capacity of parent.
• Parent’s ability to provide continuing involvement in the community
• Preference of Child if he/she is old enough to form preference.
• Existing or previous relationship and attitude or behavior of Parent with child.
• Education of a child, whether the parent is able to provide access to proper education or not.

• Growth, Safety and health of child.
• Financial and mental stability of parents.
• Mental and Physical well- being of child.
• Child’s comfort.
• Intention of parent for demand of custody.

What common issues Courts face during a child- custody dispute?

Issues which are common to all child custody disputes are:

1. Continuity and quality of attachments;
2. Preference;
3. Sibling relationships;
4. Parents’ physical and mental health;
5. Parents’ work schedules;
6. Parents’ finances;
7. Parental alienation;
8. Special needs of children;
9. Gender issues;
10. Education;
11. Styles of parenting and discipline;
12. Conflict resolution;
13. Social support systems;
14. Cultural and ethnic issues;
15. Ethics and values and religion.

In J. Selvan v. N. Punidha, on 26th July 2007, Madras High Court provided that though the prevailing legal test is that of the ‘best interests of the child’, the Courts have also postulated the “least detrimental alternative” as an alternative judicial presumption.

It is hard to determine the extent of welfare of a child, so the parent with which the child suffers less detriment can be considered as one with which the child has the maximum welfare.

What are the laws under which Interim Custody of a Child is granted?

1. Section 26 of Hindu Marriage Act, 1955. (Hindus)
2. Section 49 of the Parsi Marriage and Divorce Act, 1936. (Parsis)
3. Section 41 of the Divorce Act, 1869. (Christians)
4. Section 38 of Special Marriage Act. (For those who got married within this Act)
5. Section 12 of Guardian and Ward Act, 1890. (Any Parent)
6. Section 12 read with Section 21 of The Protection of Women from Domestic Violence Act, 2005. (Any Woman)
7. Section 40 of Juvenile Justice (Care and Protection of Children) Act, 2015 for Juveniles and children in need of care and protection like abandoned children. (Any parent)

What documents are required to be filed with a petition for child custody?

Following are the documents you will be needed to be filed with petition:

• Birth certificate of Child.
• Marriage Certificate of parents (if registered) or wedding photos and Wedding invitation card.
• Address proof of child and parent.
• Medical records of the child if any.
• Proof of Income of parents.
• Receipts of premium or policy documents of health insurance of child if any.
• Identity Card of parent and child.
• Any other document relevant in establishing your case.
• 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).

Also, one has to provide information in petition like where he/she works, where the child resides, how he or she can take good care of the child and contribute to child’s growth, education and welfare, status of relationship with child and other parent’s relationship with child. One can also offer to deposit funds in the name of the child or open an account in his name or to take responsibility for education expenses and it’s easy access to the child.

What if the parent is not earning or less earning than the other parent?

If you are not financially independent or the other parent is earning more than you, then no need to worry, the Court can still grant custody in your favor and make the other parent pay child support or maintenance as the financial income is not the only factor to be considered for grant of custody. Court considers the best interest of the child while granting custody as paramount consideration, so the parent, whose custody leads to the best interest of the child in the present or future, gets the custody. The Court determines who gets child- custody upon the basis of the facts and circumstances of each case while considering the welfare of the child. Also, the custody- orders are never final and the Court can modify it whenever it thinks fit for the best interest of the child and as per the changed facts and circumstances of the case.

Where the petition to get child-custody will be filed?

Child custody cases are filed in the jurisdiction of the Family Court or competent Court where a minor child ordinarily resides as per Section 9 of the Guardian and Ward Act.

For example, if the child is an ordinary resident of the USA and was born there then the petition will be filed and determined there as held by the Supreme Court in Lahari Sakhamur vs. Sobhan Kodali on 15th March 2019. Another example is father is living in Hyderabad while mother is living in Delhi along with minor child then if father wants Child-custody; he has to file the same only in Delhi. However, In some cases as per the facts and circumstances of the case, the Indian Courts may decide the custody for the child’s welfare as held by Supreme Court in Jasmeet Kaur vs. Navtej Singh on 20 February, 2018, If the Court is convinced in that regard, the fact that there is already an order passed by a foreign Court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests and welfare of the child are of paramount consideration.

The principle of comity of Courts as observed in Dhanwanti Joshi case [1998(1) SCC 112], in relation to non-convention countries is that the Court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. While considering that aspect, the Court may reckon the fact that the child was abducted from his or her country of habitual residence but the Court’s overriding consideration must be the child’s welfare.” In view of above, principle of comity of Courts or principle of forum convenience alone cannot determine the threshold bar of jurisdiction. Paramount consideration is in the best interest of the child.

What is Visitation Rights?

Visitation or access rights are provided to the non- custodial parent to visit the child or to interact or have communication with the child or to have the child stay with him or her for a certain limited period to share his love and support with the child when the child is in continuous custody of another parent. Visitation rights are generally treated as the rights of a child to have love and support of both parents. These are generally granted as a part of shared custody when the Court grants the shared custody to both parents.

When the Courts cannot determine the custody of a child?

As per Section 19 of the Guardian and Ward Act, the Court cannot decide the custody of a child where:

1. The minor child is a married female and his husband is not unfit as her guardian.
2. The minor child is not a married female, and his parents who are living are not unfit to be guardians.
3. 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.

What is Joint or Shared Custody?

Joint or Shared Custody of a child is provided by the Court where both parents are willing to compromise for the child to provide equal love and support to the child or for the welfare of the child. It doesn’t mean that parents have to live together but the child will live with parents in rotation as the parents will take turns to take care of the child. It is not necessary that it will be 50- 50. The custody order can provide any ratio for parents regarding the time to be shared with a child. Legal custody to one parent, while allowing the visitation rights to another parent is also a part of joint or shared custody.

What is Child Maintenance or Child Support and where one can file for it?

Child maintenance or child support is the responsibility of the parents to provide financial support or money for the needs, education, health and day to day care of the child. Generally, the non-custodial parent pays it to the custodial parent through Court or any other mode as ordered by the Court. The child support or maintenance can be granted by the Court under the following laws:

• Section 125 of Criminal Procedure Code.
  • Section 26 of Hindu Marriage Act.
  • Section 20 of Hindu Adoption and Maintenance Act.
  • Section 3(1)(b) of the Muslim Women Protection of Rights and Divorce) Act, 1986. (For an infant up to 2 years of age, this can be taken even if the husband is paying maintenance under Section 125 CRPC.)
  • Application to Wakf Board for grant of maintenance from other relatives like grandfather in case father is infirm or poor or woman fails to get maintenance from husband.
  • Interim Maintenance under Section 12(1) of the Guardian and Ward Act.
  • Interim Maintenance under Section 12 of the Domestic Violence Act.

How much amount Court grant for the child

maintenance and what are the factors which the Court considers while granting of maintenance?

Well, there is no ceiling limit in any personal law or central law on claim of maintenance of children against parents or any other relative. The Court can grant any amount as it thinks just and proper as per the facts and circumstances of the case while considering the welfare of the child. Following are the factors Court considers while granting maintenance:

• The income of parent or relative;
• The earning capacity, property and other financial resources which each of the parent has or is likely to have in the foreseeable future;
• The financial obligations and responsibilities which each of the parents has or is likely to have in the foreseeable future;
• Age of the parents or child;
• Childcare expenses, including medical insurance premium or medical expenses of the child.
• The standard of living enjoyed by the parents and the child; and
• Any other matter which in the circumstances of the case the Court may consider as relevant.

Does any woman have to pay child Support?

Yes, a woman may have to pay child support if she is earning and the custody of the child is with the father as the law is neutral for both genders.

Will a parent lose the visitation rights on non-payment of child support?

Not necessary, but the court may stay the visitation rights till the date of arrears of payment. Also the court considers the fact of non-payment of maintenance during the grant of custody and it can be a drawback so it is better to pay it on time. Child Support maintains the feeling of love and affection in the mind of the child that he has love and support from both parents. So, deciding child-custody is a great task for the Courts and welfare or best interest of the child is always paramount while dealing with it. The matters where the orders of foreign Court exist regarding custody are always complex and the Court takes every necessary precaution while dealing with these matters, just not to make the child suffer.

Note: Hindu includes Jain, Buddhists and Sikhs.