Submitted by

G.V.N.Bharatha Laxmi,
VI-Addl. District Judge,
Godavarikhani.

ARTICLE ON CUSTODY OF CHILDREN

1]. Introduction:

Children should grow and develop all round- physically, mentally,

emotionally and socially. For this, proper care and facilities should be
provided to them. Children need food, clothing, shelter, health facilities,
education production, entertainment and above all, freedom. All children
have a claim for these things in a society. These are the basic rights of
children.

Children can demand these things from their parents and elders.
Most of the children are not aware of their rights. Hence, it is the
responsibility of the adults to make them aware of their rights.

Children are tender are small. Children are dependent on the

elders. The future of every child depends on the care, facilities and
opportunities they get their childhood. Therefore, if children do not get what
they need, they cannot grow up to become worthy citizens of the country.
In order to grow up properly, some basic needs are to be fulfilled as their
right.

Some rights of children.

All the children have the following rights.

 Right to food.

 Right to clothing.

 Right to shelter.

 Right to education.
  Right to entertainment.

 Right to good health and proper nourishment.

Section 4 of Hindu Minority and Guardianship Act has defined as

follows:

a) ‘minor’ means a person who has not completed the age of

eighteen years;

b) ‘guardian’ means a persons having the care of the person of a

minor of his property or of both his person and property, and
includes -
(i) a natural guardian,
(ii) a guardian appointed by the will of the minors father or mother.
(iii) a guardian appointed or declared by a Court, and
(iv) a person empowered to act as such by or under any
enactment relating to any Court of wards;

The law governing custody of children is closely linked with that of

guardianship. Guardianship refers to a bundle of rights and powers that an
adult has in relation to the person and property of a minor, while custody is
a narrower concept relating to the upbringing and day-to-day care and
control of the minor. The term “custody” is not defined in any Indian family
law, whether secular or religious.

2]. Statutory Law Under Hindu and Islamic Law:

1]. 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, irrespective of their religion.

(i) Hindu Law: It is to be noted that the following two Acts discussed
under “Hindu Law” are applicable to any person who is a Hindu,
Buddhist, Jaina or Sikh by religion.

(ii) Hindu Minority and Guardianship Act, 1956: Classical Hindu law
did not contain principles dealing with guardianship and custody
of children. However, in modern statutory Hindu law, the Hindu
 Minority and Guardianship Act provides various provisions
concerning the matters of guardianship and custody of minor
Hindu children.

(iii) Hindu Marriage Act, 1955: Section 26 of the Hindu Marriage Act
authorises courts to pass interim orders in any proceeding under
the Act, with respect to custody, maintenance and education of
minor children, in consonance with their wishes. The Section also
authorises courts to revoke, suspend or vary such interim orders
passed previously.

2]. 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. The concept of Hizanat provides that, of
all persons, the mother is the most suited to have the custody of her
children up to a certain age, both during the marriage and after its
dissolution. A mother cannot be deprived of this right unless she is
disqualified because of apostasy or misconduct and her custody is found
to be unfavorable to the welfare of the child.

3]. Marriages registered under Special Marriage Act, 1954:

This Act provides for a special form of marriage which can be taken
advantage of by any person in India and by all Indian nationals in foreign
countries irrespective of the faith which either party to the marriage may
profess. Couples who register their marriage under Special Marriage Act
can take resort to Section 38 of the Act for the purposes of custody of
children. Section 38 empowers the district court to pass interim orders
during pendency of proceedings and make such provisions in the decree
as it may seem to it to be just and proper with respect to the custody,
maintenance and education of minor children, consistently with their
wishes wherever possible.

4]. Principles on relation to custody of children – case Law.

(i) The paramount consideration

While taking a decision regarding custody or other issues

pertaining to a child, “welfare of the child” is of paramount
consideration, Sheoli Hati v. 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 v. Shripad Vasanji
Vad, 1940 SCC OnLine Bom 77.

(ii) Section 6 of the Hindu Minority and Guardianship Act,

1956 constitutes the father as the natural guardian of a minor son.
But that provision cannot supersede the paramount consideration as
to what is conducive to the welfare of the minor, Surinder Kaur
Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698.

(iii) The word “welfare” used in Section 13 of the Hindu

Minority and Guardianship Act, 1956 has to be construed literally
and must be taken in its widest sense. The moral and ethical welfare
of the child must also weigh with the court as well as its physical
well-being. Though the provisions of the special statutes which
govern the rights of the parents or guardians may be taken into
consideration, there is nothing which can stand in the way of the
court exercising its parens patriae jurisdiction arising in such
cases, Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.

(iv). Children are not mere chattels nor are they toys for their
parents. Absolute right of parents over the destinies and the lives of
their children, in the modern changed social conditions must yield to
the considerations of their welfare as human beings so that they
may grow up in a normal balanced manner to be useful members of
the society and the guardian court in case of a dispute between the
mother and the father, is expected to strike a just and proper
balance between the requirements of welfare of the minor children
and the rights of their respective parents over them, Gaurav
Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 . Better financial
resources of either of the parents or their love for the child may be
one of the relevant considerations but cannot be the sole
determining factor for the custody of the child. It is here that a heavy-
duty is cast on the court to exercise its judicial discretion judiciously
in the background of all the relevant facts and circumstances,
bearing in mind the welfare of the child as the paramount
consideration, Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7
SCC 673.

(v). Principles in relation to custody of child

An order of custody of minor children either under the provisions of

the Guardians and Wards Act, 1890 or the Hindu Minority and
Guardianship Act, 1956 is required to be made by the court treating
the interest and welfare of the minor to be of paramount importance.
It is not the better right of either parent that would require
adjudication while deciding their entitlement to custody. The desire of
the child coupled with the availability of a conducive and appropriate
environment for proper upbringing together with the ability and
means of the parent concerned to take care of the child are some of
the relevant factors that have to be taken into account by the court
while deciding the issue of custody of a minor, Gaytri Bajaj v. Jiten
Bhalla, (2012) 12 SCC 471 .

(vi) Even an interim order of custody in favour of the parent

should not insulate the minor from the parental touch and influence
of the other parent which is so very important for the healthy growth
of the minor and the development of his personality, Ruchi
Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.

(vii) Before deciding the issue as to whether the custody

should be given to the mother or the father or partially to one and
partially to the other, the High Court must (a) take into account the
wishes of the child concerned, and (b) assess the psychological
impact, if any, on the change in custody after obtaining the opinion of
a child psychiatrist or a child welfare worker. All this must be done in
addition to ascertaining the comparative material welfare that the
child/children may enjoy with either parent, Mamta v. Ashok
Jagannath Bharuka, (2005) 12 SCC 452.

(viii) Object and purpose of the Guardians and Wards Act,

1890 is not merely physical custody of the minor but due protection
of the rights of ward’s health, maintenance and education. In
considering the question of welfare of minor, due regard has, of
course, to be given to the right of the father as natural guardian but if
the custody of the father cannot promote the welfare of the children,
he may be refused such guardianship, Rosy Jacob v. Jacob A.
Chakramakkal, (1973) 1 SCC 840.

(ix) The principles laid down in proceedings under the

Guardians and Wards Act, 1890 are equally applicable in dealing
with the custody of a child under Section 26 of the Hindu Marriage
Act, 1955, since in both the situations two things are common:
the first, being orders relating to custody of a growing child
and secondly, the paramount consideration of the welfare of the
child. Such considerations are never static nor can they be
squeezed in a straitjacket. Therefore, each case has to be dealt with
on the basis of its peculiar facts, Vikram Vir Vohra v. Shalini
Bhalla, (2010) 4 SCC 409.

(x) It is not the “negative test” that the father is not “unfit” or
disqualified to have custody of his son/daughter that is relevant, but
the “positive test” that such custody would be in the welfare of the
minor which is material and it is on that basis that the court should
exercise the power to grant or refuse custody of a minor in favour of
the father, the mother or any other guardian, Nil Ratan
Kundu v. Abhijit Kundu, (2008) 9 SCC 413. Twin objectives of the
“welfare principle” The welfare principle is aimed at serving twin
objectives. In the first instance, 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. The second justification behind the
welfare principle is the public interest that stands served with the
optimal growth of the children. Child-centric human rights
jurisprudence that has been evolved over a period of time is founded
on the principle that public good demands proper growth of the child,
who are the future of the nation, Vivek Singh v. Romani
Singh, (2017) 3 SCC 231.
5]. Nature of custody orders

In a matter relating to the custody of a child, the Court must

remember that it is dealing with a very sensitive issue in considering
the nature of care and affection that a child requires in the growing
stages of his or her life. That is why custody orders are always
considered interlocutory orders and by the nature of such
proceedings, custody orders cannot be made rigid and final. They
are capable of being altered and moulded keeping in mind the needs
of the child, Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409.
Guardianship or custody orders never attain permanence or finality
and can be questioned at any time, by any person genuinely
concerned for the minor child, if the child’s welfare is in
peril, ABC v. State (NCT of Delhi), (2015) 10 SCC 1.

Estoppel not applicable to custody orders

Orders relating to custody of wards even when based on

consent are liable to be varied by the court, if the welfare of the
wards demands variation. Estoppel is not applicable to such
orders, Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.

Where to file an application for custody of a child

Section 9 of the Guardians and Wards Act, 1890 makes a

specific provision as regards the jurisdiction of the court to entertain
a claim for grant of custody of a minor. The solitary test for
determining the jurisdiction of the court under Section 9 is the
“ordinary residence” of the minor. The expression used is “where the
minor ordinarily resides”**. Now whether the minor is ordinarily
residing at a given place is primarily a question of intention which in
turn is a question of fact. It may at best be a mixed question of law
and fact, but unless the jurisdictional facts are admitted it can never
be a pure question of law, capable of being answered without an
inquiry into the factual aspects of the controversy, Ruchi
Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 .
Interim custody / Temporary custody

Section 12 of the Guardians and Wards Act, 1890, empowers

the Court to make orders for temporary custody and protection of the
person or property of the minor. While deciding the question of
interim custody, the court must be guided by the welfare of the
children since Section 12 empowers the court to make any order as
it deems proper. The factors that must be kept in mind while
determining the question of guardianship will apply with equal force
to the question of interim custody. The strict parameters governing
an interim injunction do not have full play in matters of
custody, Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654.

Examination of the child is important

Examination by the court of the child in order to ascertain his

wish as to with whom he wants to stay is important and desirable.
Apart from the statutory provision in the form of sub-section (3) of
Section 17 of the Guardians and Wards Act, 1890, such examination
also helps the court in performing onerous duty, in exercising
discretionary jurisdiction and in deciding the delicate issue of
custody of a tender-aged child, Nil Ratan Kundu v. Abhijit
Kundu, (2008) 9 SCC 413 .

Constructive custody

The word “custody” as used in Section 25 of the Guardians

and Wards Act, 1890, ought to be held to include both actual and
constructive custody. It was admitted that this interpretation could
only be arrived at by some straining of the language but it was
considered that it was justified because it would serve to carry out
the intention of the Legislature in framing the Act, Mushaf
Husain v. Mohd. Jawad, 1918 SCC OnLine Oudh JC 22.

Hindu Minority and Guardianship Act is in addition to the Guardian

and Wards Act

Where no specific remedy is provided under the Hindu

Minority and Guardianship Act, 1956, Section 2 and Section 5(b) of
the Act makes the provisions of the Guardians and Wards Act
applicable to such a case. Section 2 makes it clear that the Hindu
 Minority and Guardianship Act, 1956 is in addition to the Guardians
and Wards Act, 1890, N. Palanisami v. A. Palaniswamy, 1998 SCC
OnLine Mad 305.

6]. Considerations governing grant of custody*

A court while dealing with custody cases, is neither bound by

statutes nor by strict rules of evidence or procedure nor by
precedents. The court has to give due weight to a child’s ordinary
comfort, contentment, health, education, intellectual development,
and favourable surroundings. But over and above physical comforts,
moral and ethical values cannot be ignored. They are equally, or
even more important, essential and indispensable considerations. If
the minor is old enough to form an intelligent preference or
judgment, the court must consider such preference as well, though
the final decision should rest with the court as to what is conducive
to the welfare of the minor, Nil Ratan Kundu v. Abhijit Kundu, (2008)
9 SCC 413.

The welfare of the child shall include various factors like

ethical upbringing, economic well being of the guardian, child’s
ordinary comfort, contentment, health, education, etc., Tejaswini
Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42.

The crucial factors which have to be kept in mind by the courts

for gauging the welfare of the children and equally for the parents
can be, inter alia, delineated, such as (1) maturity and judgment; (2)
mental stability; (3) ability to provide access to schools; (4) moral
character; (5) ability to provide continuing involvement in the
community; (6) financial sufficiency and last but not the least the
factors involving relationship with the child, as opposed to
characteristics of the parent as an individual, Lahari Sakhamuri v.
Sobhan Kodali, (2019) 7 SCC 311.

Issues common to all child custody disputes are: (a) continuity

and quality of attachments, (b) preference, (c) parental alienation,
(d) special needs of children, (e) education, (f) gender issues, (g)
sibling relationships, (h) parents’ physical and mental health, (i)
parents’ work schedules, (j) parents’ finances, (k) styles of parenting
 and discipline, (l) conflict resolution, (n) social support systems, (o)
cultural and ethnic issues, (p) ethics and values and religion.
[10] 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, J. Selvan v. N.
Punidha, 2007 SCC OnLine Mad 636.

7]. Natural Guardian

Section 6 of the Hindu Minority and Guardianship Act, 1956,

provides who is the natural guardian of a minor’s person in different
cases. It enlists the natural guardian to be as:

(a) In the case of a boy or an unmarried girl — the father, and

after him, the mother: Provided that the custody of a minor who has
not completed the age of five years shall ordinarily be with the
mother.

(b) In the case of an illegitimate boy or an illegitimate unmarried

girl — the mother, and after her, the father.

(c) In the case of a married girl — the husband:

However, it is to be remembered that in this section, the

expressions “father” and “mother” do not include a stepfather and a
stepmother.

Section 6(c) of the Hindu Minority and Guardianship Act

stands impliedly repealed by the Prohibition of Child Marriage Act,
2006. Therefore, an adult male who marries a female child in
violation of Section 3 of the Prohibition of Child Marriage Act shall
not become the natural guardian of the female child, T.
Sivakumar v. State of T.N., 2011 SCC OnLine Mad 1722.

Section 7 of the Hindu Minority and Guardianship Act, 1956,

provides that natural guardianship of the adopted son who is a minor
passes, on adoption, to the adoptive father and after him to the
adoptive mother.
Custody of a Hindu child aged below 5 years

The Hindu Minority and Guardianship Act postulates that the

custody of an infant or a tender-aged child should be given to his/her
mother unless the father discloses cogent reasons that are indicative
of and presage the likelihood of the welfare and interest of the child
being undermined or jeopardised if the custody is retained by the
mother. However, it is immediately clarified that Section 6(a) or for
that matter any other provision including those contained in the
Guardians and Wards Act, does not disqualify the mother to custody
of the child even after the latter’s crossing the age of five
years, Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 .

Custody of children born outside wedlock (illegitimate child).

The preponderant position is that it is the unwed mother who

possesses primary custodial and guardianship rights with regard to
her children and that the father is not conferred with an equal
position merely by virtue of his having fathered the
child, ABC v. State (NCT of Delhi), (2015) 10 SCC 1.

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 akin to trusteeship. A guardian is a trustee in relation
to the person of whom he is so appointed. The position of a guardian
is more onerous than of a mere custodian. The custody maybe for
short duration and for a specific purpose, Ramesh Tukaram
Gadhwe v. Sumanbai Wamanrao Gondkar, 2007 SCC OnLine Bom
975. The question of guardianship can be independent of and
distinct from that of custody in the facts and circumstances of each
case. As far as matters of custody are concerned, the court is not
bound by the bar envisaged under Section 19 of the Guardians and
Wards Act, 1890, Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC
654.
 Writ of habeas corpus for restoration of custody

In child custody matters, the writ of habeas corpus is

maintainable where it is proved that the detention of a minor child by
a parent or others was illegal and without any authority of
law, Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7
SCC 42.

In child custody matters, the ordinary remedy lies only under

the Hindu Minority and Guardianship Act or the Guardians and
Wards Act as the case may be. It is only in exceptional cases, the
rights of the parties to the custody of the minor will be determined in
the exercise of extraordinary jurisdiction on a petition for habeas
corpus, Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7
SCC 42.

Effect of remarriage on custody

Second marriage of either of the parent is a factor to be

considered while granting custodial rights, but second marriage does
not disentitle him/her to the custody of his/her children, Athar
Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654.

Visitation rights

A visitation order means an order establishing the visiting

times for a non-custodial parent with his or her children. Although the
non-custodial parent is responsible for the care of the child during
visits, visitation differs from custody because non-custodial parent
and child do not live together as a family unit. Visitation rights
succinctly stated are distinct from custody or interim custody orders.
Essentially they enable the parent who does not have interim
custody to be able to meet the child without removing him/her from
the custody of the other parent, Roxann Sharma v. Arun
Sharma, (2015) 8 SCC 318.

8]. Parental Alienation Syndrome

As a result of the separation of parents, often the child falls in

the middle of a contest of loyalty, which psychologists term as
Parental Alienation Syndrome[11]. It has at least two psychological
destructive effects:
 (i) First, it puts the child squarely in the middle of a contest of
loyalty, a contest that cannot possibly be won. The child is asked to
choose who is the preferred parent. No matter whatever is the
choice, the child is very likely to end up feeling painfully guilty and
confused. This is because in the overwhelming majority of cases,
what the child wants and needs is to continue a relationship with
each parent, as independent as possible from their own conflicts.

(ii) Second, the child is required to make a shift in assessing

reality. One parent is presented as being totally to blame for all
problems, and as someone who is devoid of any positive
characteristics. Both of these assertions represent one parent’s
distortions of reality.

A negative approach adopted by any parent is a significant

factor weighing against him/her while considering grant of custody of
the child by the court, Vivek Singh v. Romani Singh, (2017) 3 SCC
231.

9]. Hon’ble Supreme Court’s expression of deep concern

Divorce and custody battles can become a quagmire and it is heart-

wrenching to see that the innocent child is the ultimate sufferer who gets
caught up in the legal and psychological battle between the parents. The
eventful agreement about custody may often be a reflection of the parents’
interests, rather than the child’s. The issue in a child custody dispute is
what will become of the child, but ordinarily, the child is not a true
participant in the process. While the best-interests principle requires that
the primary focus be on the interests of the child, the child ordinarily does
not define those interests himself nor does he have representation in the
ordinary sense. The child’s psychological balance is deeply affected
through the marital disruption and adjustment for changes is affected by
the way parents continue positive relationships with their children. To focus
on the child rights in case of parental conflict is a proactive step towards
looking into this special situation demanding a specific articulation of child
rights, Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.

*****