The legal guardianship of a child below the age of 18 years is referred to as custody of the child. There is a common question about child custody after divorce in India and mother’s rights in child custody in India. Custody can be categorized into two types: Physical custody and legal custody. Physical custody means having the responsibility of education, physical needs like food and supervision.
(1). Legal custody, on the other hand, means deciding the religion of child, insurance claims, etc. The courts empowered to decide such matters, exercise parens patriae jurisdiction and ensure above the rights of the parents, the best interest of the child is taken care of. Financial stability, attachment with the children, criminal records, parenting skills are a few of the categories taken into consideration. Since India is a secular nation, people practice various religions and governed by religious centric laws.
Guardianship and Wards Act, (GWA) is the governing law for the purpose of custody. Section 7 of the act talks about the appointment of a guardian by the court for the welfare of the child. No longer the right of a father to have custody of the child is absolute. In Goverdhan Lal v. Gajendra Kumar(2), the court held that the father had a preferential right of having custody of the minor child, however, it was reaffirmed by the court that welfare of the child is the prime factor in deciding the custody of a child. In M.K. Hari Govindan v. A.R. Rajaram(3), the same principle was reiterated. It is the duty of the court to strike a proper balance between the welfare of the child and the rights of the parties. (4)
For the purpose of determination of welfare of the child, the following questions were laid down in the case of Jayant Bara v. Deepa Barar(5), who would provide better care for the welfare of the infant; where is the infant more likely to be happy; who can provide physical comfort and mental development; who will provide love and affection to the infant when needed and who can provide better nursing and better education.(6) Even under section 25 of the Act, the governing principle is the welfare of the child are .
Custody under Hindu Law
Hindu Minority and Guardianship Act (HGMA), 1956 governs the laws of custody in India. The provisions of GWA and HGMA are complementary to each other. The most important factor inaptly deciding the custody of the child is the welfare of the child. The term welfare is not defined but has been interpreted in the widest sense by the Judiciary.
For a child of tender age, the preferred custodian is the mother; for older boys, custody should be vested with the father and for older girls, it should be given to the mother: this is the general pattern by which custody cases are decided, however, there is no statutory provision granting it only judicial precedents. Under HGMA, for a child below 5 years of age, in ordinary course custody may be granted to the mother. (7) However, there are exceptions to the general rule and when a mother acts negligently she is not entitled to the custody.
When the child is of the age where he understands things and would be able to decide as to which parent should have custody, such opinion shall be taken into consideration, though not conclusive and final. Like in the case of Venkataramma v. Tulsi,(8) the opinion of a child was disregarded because children were tortured there.
Custody other than parents can also be claimed by a third party whose sole concern is the welfare of the child. In the case of Baby v. Vijay,(9) custody was granted to maternal grandfather for the welfare of the child because the father was unfit.
Custody Under Muslim Law
In Muslim law, hizanat describes the right of a woman/mother to have custody of the child, both legitimate and illegitimate unless proven guilty of misconduct. This right is enforceable under the father of any third party. However, this right is not absolute.
Hizanat is dismissed for a son who has completed the age of 7 years and daughter when she has attained puberty, for Hanafi’s. With respect to Shia’s, custody of the mother remains intact till the son is weaned. Father’s right of hizanat starts only after the mother’s right of hizanat has been dismissed or otherwise, in the absence of a mother, a father can be a testamentary guardian to the child.
Custody Under Christian Law
For Christians, custody issues are determined by the Indian Divorce Act, 1869. Section 41 of the Act talks about the power of the court to make orders for the custody of a child in case of separation.
Rosy Jacob v. Jacob A. Chakramakkal, the principle of the welfare of a child was given prime importance. If the welfare of the child, requires any variation, then the same may be performed by the court. The court can also place the child under the protection of the court if, after a decree of judicial separation, it feels that it is necessary. Under Parsi law, custody issues are dealt with by the universal law, the Guardians and Wards Act, 1890.
Custody of a child is preferred on a safe hand as it is a decision of the life of the child. Custody is a subject of personal law and usually arises as a consequence of divorce. Irrespective of that, the welfare of the child is of paramount consideration while deciding the matters of custody. Though welfare of the child has not been defined in the law, it has to be interpreted in the widest sense. The court is of the duty to strike a balance between the welfare of the child and the rights of the parents.
 Jay Kevin Salerno, AIR 1988 Bom 139
 AIR 2002 Raj 148
 AIR 2003 mad 315
 S. Abboy Naidu v. R. Sundara Ram, AIR 1989 Mad 129
 AIR 1994 NOC 269 MP
 Commentary on the Guardians and Wards Act
 Section 6(a) of the HGMA
 (1949) 2 MLJ 802
 AIR 1992 Ker 277
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