Custody of Child in India

"To be in your children’s memories tomorrow, you have to be in their lives today" - Barbara Johnson

INTRODUCTION-

When a marriage breaks down or ends up in separation of spouses, the person who gets most affected is the child born out of the marriage. Thus, to keep in mind the relationship of child and parent, the Indian Law, holds the child’s welfare as the most important factor of consideration while deciding upon who gets the custody of a minor child.

The trend followed by custody and guardianship in India shows the archaic and patriarchal mindset of the country. An RTI response shows that of the 83 child custody matters that went to court in a year, only in two cases, custody was awarded to the father, 50% overnight vacation is given to the only one parent. The Supreme Court has with time and again ascertained that the first and foremost consideration is the welfare and interest of the child and not the rights of parents. The courts will always follow the best interest doctrine.

CONCEPT OF JOINT CUSTODY-

Joint legal custody means that both the parents have the legal authority to make major decisions for the child. These include decisions regarding education, religion, and health care. Here both the parents are awarded custody rights. It is also called shared parenting or shared residency, whereby the child spends equal or close to an equal amount of time with both the parents.

After divorce or separation, parents may have joint physical custody as well as joint legal custody of their children, commonly they may have joint legal custody while one parent has sole physical custody, or rarely they may have joint physical custody while one parent has sole legal custody.

ACTS and PROVISIONS-

In India, there are the following Acts that deal within the provisions of custody and guardianship-

1. Guardians and Wards Act, 1890

2. Hindu Minority and Guardianship Act, 1956

3. Hindu Marriage Act, 1955

Section 7 of the Guardianship and Wards Act empowers the court to appoint a guardian keeping in mind the welfare of the child. Section 17 highlights the factors which the court empowers guardians. Section 17(1) empowers the court to appoint the guardianship on the personal law of the minor. Section 17(2) clarifies that in deciding the welfare of the minor of the age, sex, closeness of person to minor, religion, character, and capacity of the person should be considered by the court. Section 17(3) permits the court to take the opinion of the minor if he is old enough to make an intelligent opinion.

Hindu Minority and Guardianship Act, 1956 applies to only Hindus in India. Section 6 of the Act states that the father is a natural guardian and after him, it is the mother. Section 6(a) states that –

(1)In case of a minor boy or unmarried minor girl, the natural guardian is the father, and “after” him the mother; and

(2)The custody of a minor who has not completed the age of five years shall “ordinarily” be with the mother.

Section 13 puts emphasis on the welfare of the minor by clarifying that in the process of deciding on a guardian “the welfare of the minor “ shall be of “paramount importance” and no guardian can be decided on without looking into the welfare of the minor.  

Law Commission of India’s Report No. 257 on “Reforms in Guardianship and Custody Laws in India” recommended many changes to the Guardian and Wards Act as well as the Hindu Minority and Guardianship Act. The report also acknowledges the need for joint custody to be introduced in our laws.

Here are a few of the suggestions made in the report –

1. Section 6(a) should be amended so as to allow both the father and mother to be natural guardians of the minor equally

2. By amending sections 17 and 19 of the Guardian and Wards Act, more emphasis must be placed on the “welfare of the child” and that it should be of paramount importance.

3. A new definition of “joint custody” in the Guardians and Ward Act Is to be introduced defined as under –

(a) “Joint custody” is where both the parents:-

share physical custody of the child, which may be equally shared, or in such proportion as the court may determine for the welfare of the child; and

ii) equally share the joint responsibility for the care and control of the child and joint authority to make decisions concerning the child; and

(b) “Sole custody” is where one parent retains physical custody and responsibility for the care and control of the child, subject to the power of the court to grant visitation rights to the other parent.

WHAT FACTORS CONSTITUTE “WELFARE” OF A CHILD-

The welfare of the child broadly includes the following factors-

1. The ethical upbringing of the child

2. Safekeeping of the child

3. Good education to be imparted

4. Economic well being of the guardian

WHERE DOES THE CHILD GO AFTER A DIVORCE-

The mother and father have equal rights to the custody of the child. Who gets the custody of the child, however, is a question which the court decides upon. Moreover, when it comes to personal laws the statues are conflicting as compared to secular enactment in the form of The Guardian and Wards Act, 1890 which holds the welfare of the child as paramount importance. Just because the custody of a minor has been awarded to one parent, it does not mean that the other parent cannot see or be in contact with the child. The Courts are very strict to ensure that the child gets the love and affection of both the parents. The other parent is granted visitation rights, the condition of which is determined by the court.

TYPES OF CHILD CUSTODY IN INDIA-

A court of competent jurisdiction in India orders the custody of a child in the following three forms-

Physical Custody

Physical custody when awarded to a parent, implies that the minor will be under the guardianship of that parent with visitation and periodical interaction with the other parent. The aim behind such a custody award is that the child lives in a safe and fulfilling environment but is also not deprived of the affection of the other parent during his formative years.

Joint Custody

Joint custody of a child does not mean that the parents will both live together because of the child even though that is what the courts believe is best for the welfare of a minor. It simply means that both the parents will take turns keeping the child in their custody. The rotation of a child between the parents’ custody may vary from certain days or a week or even to a month. This not only benefits the child as the affection of both the parents is not lost and the parents also get to be a part of their child’s life in those young years.

Legal Custody

Legal custody of a child differs from physical custody in more ways than one but the fundamental difference between the two is that legal custody does not necessarily entail having the child with you or being with your child at all times. Legal custody of a child basically means that the parent granted the legal custody takes every decision for the child. From where will the child study and what doctor will the child be treated by is part of legal custody. In most instances, courts grant legal custody to both the parents together but if the divorce is messy and the parents are, apparently, never going to agree with each other, the court grants the legal custody of the child to one parent.

WHO GETS THE CUSTODY OF MINOR?

The custody of a child can be primarily claimed by either the mother or the father. In cases where the parents are not there to take the custody, the maternal and paternal grandparents, any other relative(s) of either of the parents can seek the custody of the child. The court can also appoint a third person to be the guardian of the child.

The Mother of a minor cannot be discarded as the guardian just because she earns less than the father. The father has to provide for the child’s maintenance in such a case as it is a well-established principle of law that a step-mother has the primary obligation of affection towards her own children and the father would be at work all day, and hence, the mother would be the better guardian for the welfare of the minor child.

The court takes into consideration following things when awarding custody of the child-

1. Financial stability of the custodial parent

2. Their mental and physical well being

3. The child’s comfort with the said parent especially while growing up

4. The intention of the custodian

5. The judge has the full right to decide what is best for the child. The child can also choose for themselves.

6. The child is not a source to inherit the property in cases of divorce and maintenance.

As important as the right to custody or access is, so is the duty to provide for and maintain the child. The parties can agree to a one-time lump-sum amount or a staggered payment either at different stages of the child's educational life or a monthly amount with an incremental increase. Whatever it be, it ought to be sufficient for the day-to-day expenses of the child to maintain or improve the standard of living.

The court is parens patriae, the ultimate guardian of the child and her/his property and so minor's property/income is amply protected by law and terms of custody.

SUGGESTIONS FOR ARRANGEMENTS IN JOINT CUSTODY-

The most common three types of joint custody arrangements:

• 2-2-3 plan Monday and Tuesday with Mom, Wednesday, and Thursday with Dad, Friday through Sunday with Mom. Then the schedule flips Monday and Tuesday with Dad, etc.

• 2-2-5 plan Monday and Tuesday with Mom, Wednesday and Thursday with Dad, and then alternating Friday through Sunday between the parents (one week with Mom, the next with Dad). This schedule often works better when kids are older and have their own schedule of practices, play dates, and obligations.

• Alternate week plan week 1 with Mom, week 2 with Dad, and so on.

The arrangements can be customized as per the convenience of the parent, the child’s age and wishes, family schedule, career, and social commitments of each parent, the distance between the parents’ homes.

CONCLUSION-

The most important thing is to allot the custody of a child to seek the welfare and so if required the other personal law rules and rituals can be set aside. No legal right, preferential right or any other right holds more importance than well being of the child. Joint custody works only when the parents have worked out their differences and are ready to work together for the welfare of their child. Neither of the parents shall hold a grudge against another as it can create difficulty in communicating between the parents for the arrangement to work and it can easily go south if both the parents are not on board.