by Devita Shah from K.L.E Society Law College, Bangalore.

“Anyone can have a child and call themselves ‘a parent’. But a real parent is someone who keeps aside their selfish need and puts the child above all.”

One of the most crucial issues that surface due to the dissolution of marriage is the matter of child custody. Generally, in many cases custody of a child is determined by the divorcing parents without knocking the door of court but in certain situations court is the last resort. In all matrimonial proceedings, the most important and complex issue that emerges is that of a child because for a child both mother and father plays an important role in building up the future of the child. Usually, when the difference arises between the spouses which leads it to the grueling situation then court comes into the picture to determine the future of the child. But a substantial question turns out for court is to whom custody of the child should be given?  In the battle of child custody, neither party is ready to lose an inch. It comes out as if through the medium of child custody, they want to establish the fault on the part of other party. Each parent want to have sole custody of the child. Therefore, it becomes a tug of war between two conflicting parties.

Under Hindu Law, matrimonial laws provides a provision regarding custody of a child and true powers are vested under Guardians and Ward Act, 1980. Apart from this there is also Hindu Minority Act, 1956. These Acts are empowered for the appointment and declaration of guardian and other allied matters. Irrespective of caste, race or religion, though in certain cases, court may give priority to the personal law. Both the Acts are complementary and not in derogation to each other. Therefore, in order to determine the custody, Guardian and Wards court has the power to grant Permanent custody or interim custody.

  • Permanent custody- it is awarded by the court after positively examining all the aspects of the case and satisfied with all the essentials for the child. Any custody arrangement indefinitely approved by a court comes under permanent category.
  • Interim custody- it is awarded when the case is pending before the court. This is the stage where decision is yet to be given. In this, the individual has custody till the court reaches a permanent decision regarding the child’s care.

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In determining the question of custody and guardianship, the paramount importance is given to the welfare of the child. The word welfare should be taken in widest sense and must include all the moral as well as physical wellbeing of the child.

In India, children who are under age of 18 are considered as minor and supposed to have a legal guardian. During divorce proceeding, the issue of child custody is major concern before the court. There are many types of custody and it depends on the discretion of the judge. It could be one parent or sole custody, or can give both parents equal rights through joint custody. In many cases, both parents may continue to share the custody of child but eventually one parent ends up with getting the physical custody. The decisions of the Family courts are purely based on the best interest of the child and not on the best arguments. Commonly, court award the physical custody to the parent who establish the overall development of the child by proving best financial security, adequate moral norms and least interruption for the child. Till the minor attain the age of 18, both parents share the custody of child. Legal custody means that either parents have got the right to take decisions which may affect the welfare of the child whereas primary custody means one parent has the responsibility of child’s basic needs.

Under Hindu Minority and Guardianship Act, 1956 contains a provision which specifies that custody of a child up to the age of five should ordinarily be with the mother. But other personal laws differs from each other and contains no such statutory provision. Apart from mother, fathers are also entitled to have the custody but it is up to the court to choose the safe hands for the kid.

Kamal Rudra Das J. expressed that:

Mother’s lap is God’s own cradle and a child of a tender age must remain with the mother. But if mother neglects the infant child as she does not want to sacrifice the type of life she leading can be deprived of custody.

In the matter of older children the court has taken a view that the mail child above the age of sixteen years and a female above fourteen years must not be forced to live in the custody. Also the wish of mature children will be considered if they are capable enough to take decisions for their welfare.

In Gohar begum v. Suggi, the Supreme Court, held that the mother, a muslim woman, and a singing girl by profession, was entitled to the custody of her illegitimate daughter of six years which was in custody of her mother’s sister. The Court said, no matter who was the father, the interest of the child will be better served in the custody of the mother rather than her mother’s sister.

However, a mother is always given the primary concern but when the kid is ill-treated by the mother then custody may be granted to the father there are many such cases and of them is of Balram Mandalain v. Rajani Mandalain in which the boy was ill treated by the stepmother. The court said that if the boy is kept under the guardianship of father, for all purpose, the stepmother will have full control over the boy. The court held that the natural mother was a better guardian than the stepmother.

In Munnibai v. Dhanush, the father after divorce remarried. The court held that there was possibility of the minor being neglected by the stepmother. It was held that the mother was entitled to the custody of the child as she has no intention to remarry again. The claim of natural mother was preferred than to the claim of father.

Thus, there are various situations where it is very difficult to decide about the custody of the child because every case differs from each other and a universal law which is codified does not fits in every situation of the case. Laws are nothing but certain set of rules which governs the body of an individual in society or basic rules which are to be followed and when these are not followed then court becomes the ultimate rescuer. Wherefore, from all the above cases it can be concluded that the courts have to pass such decree which are proper with respect to custody and maintenance and also it is the duty of court to decide the case as per the circumstances and the welfare of the kid. In general, the main purpose of the Family Court is to reunite families and remove the disputes between the divorcing parties so that the minor should not suffer the consequences. Where custody is contested, both parties becomes anxious to have the custody and other difficulties arises. Passions are aroused to claim the custody from spiteful or selfish motives and their child becomes the ultimate sufferer. Judges strive to make the best arrangements which can suit the child with the new situation created by the dissolution of the marriage. For this purpose, legislature has given wide powers to the court to look after the welfare of the children. This indeed is one of the most difficult problem of the family law.

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