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A Hindu person has been defined to include Jains, Buddhists and Sikhs also and thus, the law made for Hindus is also applicable to persons of these religions. The right of custody of a Hindu child is dealt by the Hindu Minority and Guardianship Act, 1956 together with the Guardians and Wards Act, 1890. The two statutes have to be read harmoniously and the enforcement of one at the cost of the other is not permissible.
Some general rules of child custody applicable on Hindus are -
The custody of a child below the age of 5 should be given to the mother as it is believed that the child of such a tender age needs affection and love which can only be provided by the mother.
It has been a customary practice under Hindu law that the father is the natural guardian and has the ultimate right of custody. This practice has been codified in Section 6 of Hindu Minority and Guardianship Act, 1956 and the custody of children in India above the age of 5 and below the age of 18 years has been the right of the father. In Geeta Hariharan v Reserve Bank of India, the Supreme Court held that the mother can only claim custody on the pretext of the death of the father or in his absence. However, this rule is not applicable if the child is illegitimate. In such a case, the right to custody is only with the mother.
The ultimate rule for granting of child custody is that such custody should be in the 'best interest of the child'. All the rules laid down above can be disregarded on a strong implication of affecting the 'best interests of the child' adversely.
If the court believes that the parents are unwilling or unable to take care of the child properly or in his best interest, then the court can award the custody of such a child to the close relatives. In a case close relatives are also not able to dispose of the duties of the parents, then the custody can also be given to a capable third person at the discretion of the court.
There are certain persons who cannot be given child custody - i. a person who has certain bad habits that will adversely affect the proper upbringing of the child; ii. a person who has ceased to be a Hindu or converted to any other religion; iii. a person who has renounced the world and does not believe in any materialistic pleasure eg. a person trying to achieve nirvana; and iv. a person who is not able to carry out the development of the child in his best interest (in such a case even mother of a child of a tender age can be denied custody).
Further, the court while deciding on custody can provide the other parent (who is not entitled to custody rights) with visitation rights wherein the other parent can be given some time to visit the child. Such rights can be passed by interlocutory orders and can be modified to suit the changed circumstances.
In Vikram Vohra v. Shalini Bhalla, the Supreme Court allowed the relocation of the mother and the child in Australia and thereby modifying the visitation rights. But in my opinion, in such a situation it has to be analysed that the reason for relocating is not to adversely affect the other parent and is in the best interest of the child. If this is not the case, then the relocating to adversely impact the visitation rights should not be allowed.
The gender bias prevalent throughout the Hindu law of custody has to be reviewed in light of the upliftment of women in the present era. Section 6(a) of the Hindu Minority and Guardianship Act and Section 19(b) of the Guardians and Wards Act (unamended) are clearly discriminatory as they consider father to be the natural guardian over the mother without any rationale.
The Law Commission in its 1989 report has clearly understood this discrimination and has proposed the laws to be amended in a manner that does not infringe upon the right of equality. On this recommendation, Section 19(b) of the Guardians and Wards Act was amended to bring the custody rights of the mother and the father at par but there has been no parallel amendment in the Hindu Minority and Guardianship Act.
Custody under Muslim Law ('Hizanat')
The issue of custody of a Muslim child is dealt with by the personal law and Guardians and Wards Acts, 1890; and in case of conflict, the latter prevails. The absence of any special religious law statute (like Hindus have) does not adversely affect the rights of Muslim children as certain practices which are fundamental to the custody of a Muslim child are considered by the courts while awarding custody.
Certain general principles adopted for custody of a Muslim child are - Under the Shia law, a mother's right to the custody of her minor children extends until a son is two years old, and the daughter attains the age of seven.
Under Hanafi law, custody of a child is with the mother till he attains the age of 7 in case of a boy; and till she attains puberty in case of a girl.
The mother's right of custody continues even if she is divorced but in case of remarriage after divorce process in India, the custody belongs to the father.
The consent of the child is taken into consideration if he is held to be able to understand his interests. Further, such consent has to be cross-checked so as to identify there's no element of tutoring present. In case there is, the consent of a child has to be disregarded.
The custody of a boy above the age of 7 and a girl who has attained puberty is transferred to the father who likes in case of Hinduism is considered to be the natural guardian.
The above rules are subject to certain exceptions wherein certain people are denied custody irrespective of their gender. These rules are - i. a person who possesses a bad moral character; ii. a person who has ceased to be a Muslim and thereby converted to any other religion; iii. a person who does not have a sound mind; iv. the doctrine of 'best interest of the child' applies here also and a person who cannot take proper care of the child is not entitled to the custody; and v. a woman who has married within prohibited relationships.
The last restriction shows the bias that still holds against the women at present in society. Even after all the feats, women have achieved in the present world, 'equality' is still left behind a bit. The annulment of a triple talak was a step forward towards gender neutrality of rights but entitling the men who have married in prohibited relationships to get the custody of a child and denying the women who have done the same is arbitrary; and as has been stated arbitrariness is antithetical to equality and unconstitutional and thus, curtailment of such a right is unconstitutional.
Custody under Christian law
The issue of custody of a Christian child is dealt by the Indian Divorce Act, 1869 with Guardians and Wards Act, 1890. The Act provides that in case of religions that do not have personal laws for child custody, the decisions would be enforced by the courts under the powers allotted by Section 41-43 of the Act.
The court has the power to decide the question of custody of the child either during the proceedings or after the termination of such proceedings. The court has to exercise the power in the best interests of the child and anything that adversely affects the child would have to be considered by the courts before taking a decision on custody.