Introduction: Concept of Child Custody
When a divorce takes place between a father and a mother, a child is the one who is affected a lot. It is the hardest thing in the world – for a child to see his parents separate. Both father and mother are important for the development of a child so it becomes very difficult for the child to decide one person with whom he/she will live. There is particularly no law that tells about the custody of the child.
The term child custody refers to a parent’s rights and responsibilities towards their child. The application for the custody of the child can be filed at any time before or after the divorce petition has been initiated. A petition for child custody can also be filed in the case of Judicial Separation or when parents simply decide not to live with each other. The petition can also be filed, during the divorce case for interim custody of the child.
Some Acts in which the term custody is being described are:
(i) Guardians and Wards Act, 1890: This Act is a secular law regulating questions of guardianship and custody for all children within the territory of India.
(ii) Under Hindu Law: The following acts apply to the persons who are Hindu, Jains, Buddhist, or Sikh by religion are:
(a) Hindu Marriage Act, 1955: Section 26 of the Act authorizes the Court to pass any interim order related to the custody and maintenance of the minor child.
(b) Hindu Minority and Guardianship Act, 1956
(iii) Islamic Law: In Islamic law, the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty.
(iv) Parsi and Christian Law: Under Section 49 of the Parsi Marriage and Divorce Act, 1936 and the Divorce Act, 1869 are authorized to issue interim orders as in the case of the Hindu Marriage Act.
(v) Special Marriage Act, 1954: Section 38 of the Act empowers the District Court to pass interim orders during the pendency of proceedings and make such provisions in the decree as it may seem to it to be just and proper for the custody, maintenance and education of minor children, consistently with their wishes wherever possible.
The subtle difference between “custody” and “guardianship”
The appointment of a guardian and the custody of minors are two different aspects. There is a subtle distinction between the expression “Custody” and “Guardianship”. The concept of custody is related to physical control over a person or property. The concept of guardianship is the same as that of trusteeship.
Types of Custody
1. Legal Custody: This is the custody awarded to either parent by way of a Court order.
2. Physical Custody: Physical custody refers to where the children live regularly.
3. Joint Custody: A situation where both parents have custodial and visiting rights.
Is it necessary for the parents to maintain their children?
According to Section 20 of the Hindu Adoptions and Maintenance Act, 1956 it is necessary for both the parents to maintain their minor child, whether legitimate or illegitimate. Parents are bound to maintain their unmarried daughter even if she attains the age of majority which is 18 years if she is unable to maintain herself out of her earnings.
As per section 125 of the Code of Criminal Procedure, 1973, father bears the duty for the maintenance of the child, provided he has the earning capacity to do so. If he fails to do so even when capable, the court can order for his imprisonment, as refusing to bear the expenses of his child is an offense.
While deciding a custody dispute irrespective of everything a “child’s best interest” assumes the primary importance. There is no hard and fast rule for deciding the custody. It is decided as per the facts and circumstances of each case. Some of the factors which are kept in mind are the:
1. Age of the child – infants, tender aged children is mostly given to mothers.
2. Understanding with the child
3. Environment at home
4. Financial stability
5. Educational Qualification
6. Criminal Charges
7. Physical and Mental Ability
In the case of Sheloi Hathi vs. Somnath Das, the Supreme Court has held that the paramount consideration while deciding child custody will be the “welfare of the child”. Not the welfare of the mother or father, but only the welfare of the child.
Nature of Custody Order
The custody order is very important for the life of a child therefore they are always considered interlocutory order and cannot be made rigid and final. They are capable of being altered and molded keeping in mind the needs of the child.
Twin objective of the “welfare principle”
The objective behind the welfare principle of the child is two folds:
1. Firstly, it is to ensure that the child grows and develops in the best environment. The best interest of the child has been placed at the vanguard of family/custody disputes according to the optimal growth and development of the child and has primacy over other considerations. This right of the child is also based on individual dignity.
2. Secondly, the justification behind the welfare principle in the public interest that stands served with the optimal growth of the children. Child-centric human rights jurisprudence that has been evolved over a while is founded on the principle that public good demands the proper growth of the child, who is the future of the nation.
How big a factor is a financial stability for a custody battle?
While granting Custody, Court generally strikes a balance between all these factors and then decides the custody of the child. Though financial stability is one of the factors for deciding the custody it cannot override other factors. Only on the reason for financial stability, a father cannot be granted a child’s custody and on the other hand, a mother could not be refused just because she is not a working woman. It is because, after the divorce, the husband will provide the maintenance which will be utilized for the upliftment of the child.
Can the decision of custody be modified/canceled?
The order for the child’s custody can also be modified if the court feels that the child is not happy with the decision of the Court and also in the cases where there is a change in the conditions of the non-custodial parent however non-custodian parent needs to show that there has been a substantial change in the circumstances surrounding the child. The order can also be canceled in the case if parents decide to live together again but that happens only in the rare cases.
Are Mothers more likely to be custody over fathers?
In the case of the children of ‘tender age’ which is usually below 5 years, it is presumed that a child can’t manage without his/her mother. Therefore, the custody of children below 5 years is given to the mother, unless she is disqualified and found unfit or unfavorable to the welfare of the child. The Court generally does not separate siblings therefore the same parent will get the custody of all the children. The decision of a child’s custody is very important for the growth of the child. The ‘best interest of the child’ should be seen before granting the custody to any parent.
Examination of the Child
The examination of the child is important as to know his/her wish to ascertain whether he wants to stay with mother or father. This step is important and desirable.
Custody of an illegitimate child
The custody of an illegitimate child will be given to the unwed mother and not to the father is not conferred with an equal position merely by his having fathered the child.