Legal

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This Blog is written by Tanvi Sanjay Rane from Dr. D.Y. Patil College of Law, Maharashtra. Edited by Ravikiran Shukre.

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INTRODUCTION:

The most important primary human group is the family. According to Clare, “a family is a system of relationships existing between parents and children”. Eliot and Merrill define family as “the biological social unit composed of husband, wife and children”. These relationships existing in a family are established through the union of marriage. Marriage thus becomes a primary element of a family. It is well-established that this marital relationship between the husband and wife shall be safeguarded from every possible angle, though there exist certain substantial grounds on which a marriage can be severed. These grounds are known as grounds of divorce. Divorce is the legal dissolution of marriage by the court or other competent authority.

Divorce cases are not only emotionally draining for the parties but also for the children involved, rather more so on them. And what necessarily follows a divorce case is a battle for the custody of the child. Custody of children is a delicate, but unavoidable matter involved in most matrimonial proceedings, and normally Courts exercising matrimonial jurisdiction have the power to pass orders concerning the custody and maintenance of the children of the marriage.

With custody follows guardianship. They are two closely linked concepts and so are the laws dealing with them. The concept of custody relates to the upbringing and day-to-day care and control of the minor. Whereas, guardianship is a wider concept, it refers to a bundle of rights and powers that an adult has in relation to the property and person of a minor. Although they are closely linked with each other, there lies an elusive difference between them. Custody is related to the physical control over a person and property of the minor. On the other hand, the concept of guardianship is similar to trusteeship. A guardian is a trustee with respect to the person of whom he is appointed. It was held in Ramesh Tukaram Gadhwe v. Sumanbai Wamanrao Gondkar [BomCR 634, (2008)] that, the position of guardian is more onerous than that of mere custodian. The term ‘custody’ has not been defined in any Indian Family Law, whether secular or religious.

These principles of marriage, divorce and guardianship are constituted in family law. As we know, Uniform Civil Code is a distant dream, these principles are governed by different personal laws, based on religion, caste, community etc. Hence, different laws apply to different people and in different cases. This article will be an attempt to understand the principles of custody and guardianship taking place after a divorce as applicable in different personal laws while establishing to what extent the child’s desire to stay with one party should influence the decisions made by the courts.

STATUTORY PROVISIONS:

The statutory provisions relating to custody and guardianship of a child are found in several acts. These provisions can be summarized as under.

Guardians and Wards Act, 1890:

The general law relating to guardianship is contained in the Guardians and Wards Act, 1890. This is an act which applies to all persons in India, irrespective of their religion. This act is a secular law pertaining to guardianship and custody for all children within the territory of India.

Hindu Law:

Under Hindu Law, law pertaining to custody and guardianship of minor child is regulated by two acts viz. Hindu Marriage Act, 1955 and Hindu Minority and Guardianship Act, 1956.

1. Hindu Marriage Act, 1955:

Section 26 of the act provides that in any proceeding under the act, the Court may, from time to time, pass interim orders and make provisions as regards the custody, maintenance and education of minor children, consistently with their wishes wherever possible. Similarly, even after passing the decree, the Court may, upon an application for the purpose, make similar orders from time to time. The Court may also revoke, suspend or vary such order from time to time.

Needless to mention, the most important consideration for the Court under this section would be the welfare of the minor. The term “children” used in this section would include not only legitimate children, but also those children who are born out of void or voidable marriages, and are deemed to be legitimate under section 16 of that.

2. Hindu Minority and Guardianship Act, 1956:

As far as Hindus are concerned the law on this point is also to be found in the Hindu Minority and Guardianship Act. The provisions of this act are in addition to, and not in substitution and derogation of the Guardians and Wards Act. Thus, if the act is silent or any particular point, the Guardians and the Wards Act would apply. Again, if different provisions are made by these acts on the same point, those of the Hindu Minority and Guardianship Act will apply in the case of Hindus.

Section 13 of the act does not lay down any new rule, but nearly reiterates the well-established principle. That when the Court appoints any person as the guardian of a Hindu minor, the welfare of the minor will be the paramount consideration. This salutary rule forms the key-stone of the whole law on this subject. In this context, the term, “welfare” is to be understood in a very wide sense, and includes, not only the material and physical well-being of the minor, but every factor connected with the moral and religious welfare, education and upbringing of the minor.

Mohammedan Law:

In Muslim personal law, the term “wilayat” means the guardianship of the minor. Muslim law recognizes two types of guardianship viz. “Jabar” and “Hizanat”. Jabar is guardianship in marriage while Hizanat is guardianship of person of the minor for custody. Here, we are concerned with the concept of Hizanat.

Guardian of The Person of the Minor for Custody (Hizanat):

Under Sunni Law, mother is entitled to the custody of her male child until he has completed 7 years of age and her daughter until she has attained puberty. Under Shia Law, the mother is entitled to the custody of male child until he attains the age of 2 years and of a female child until she attains the age of 7 years.

The term Hizanat means mother’s right to custody of a minor or in other words, the guardianship of a person of a minor, both during the marriage and after its dissolution. While a male entitled to the custody of a child is known as “hazin”.

The right of mother continuous even if she is divorced by the husband, unless she marries a second husband in which case the custody belongs to the father. Ulfat Bibi v. Bafati, [(1997) 49 AIR 773] However mother is entitled only to the custody of a minor up to certain age. She is not the natural or primary guardian. Only father, or if he be dead his executor is the legal guardian.

Christian Law:

Section 41 of the Divorce Act, 1869 lays down that, in any suit for judicial separation the Court may pass orders, as a deems fit, as regard the custody, maintenance and education of the minor children whose parents’ marriage is the subject-matter of the suit. If found necessary, the Court may also direct proceedings to be taken for placing such children under the protection of the court.

Parsi Law:

Section 49 of the Parsi Marriage and Divorce Act, 1869 provide that the court may, from time to time, pass such interim orders and make such provisions in a final decree as it may have deemed just and proper with respect to the custody, maintenance and education of the minor whose parents’ is the subject-matter of the suit.

CASE LAWS:

Case laws are a vital and essential part of all legal systems as the true spirit of legal principles are enrooted in their application in way of case laws. These case laws help us understand the core principles of the law and their practical application. While understanding, “to what extent the child’s desire to stay with one party should influence the decisions made by the courts”, it is prudent to study the case laws which lay down this principle.

1. Dasgupta. v. Misra, [AIR (1985) Orissa 239]:

It was observed in this case by the Orissa High Court that, section 26 vests a complete discretion in the court to make such orders as it deems fit and proper, taking into consideration, the welfare of the minor.

2.  Lekha v. Anil Kumar [(2006) (12) SCALE 163]:

The Supreme Court has observed that remarriage of the mother cannot be taken as a ground for not granting the custody of the child to the mother and that paramount consideration should be given to the welfare of the child. The court observed that the High Court had committed a grave error in not ascertaining the wishes of the minor, which has consistently been held by the courts to be of relevance in deciding grant of custody of minor children.

3. Archana Barthakur v. Dr. Ranjit Barthakur, [A.I.R. NOC 125 Gauhati]:

In this case the question of the custody of a girl of 7 years was before the Court. Admittedly, the girl was away from her father since she was 5 years old and was greatly attached to the mother, who had a steady income. The Court felt that she would not find any happiness, if placed in father’s custody, and that her welfare would be fully protected if she remained in the custody of her mother.

4. Kumar v. Chetana, [A.I.R (2001) SC 2179]:

As once observed by the Supreme Court, in matters relating to, the custody of minor child, what is important is the interest and welfare of the child- and not the convenience or pleasure of the parents.

5. Stark v. Stark, [(1910) P.190]:

The general rule is that the innocent party is entitled to the child’s custody, but an exception is made where the welfare of the child requires the child to be kept in the custody of the parent who is guilty of the matrimonial affair. The interest and welfare of the child are always the paramount considerations in all such cases. As observed by Hardy. M. R., “the benefit and the interest of the infant is the paramount consideration- and not the punishment of the guilty spouse.”

6. Ammal v. Ammal, [A.I.R. (1924) Mad. 873]:

If the child is old enough to form an intelligent opinion, the child’s opinion should also be given due weight in deciding which parent should have custody of the child.

7. Mamta Ashok Jagannath Bharuka, [(2005) 12 SCC 452]:

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.

8. Gayatri Bajaj Jiten Bhalla, [(2012) 12 SCC 471]:

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.

SIGNIFICANCE:

The significance in this matter lies in the broad parameters that court considers while deciding the issue of child custody.

• Financial stability and status of the custodial parent.

• Child’s proximity, closeness, comfort and love for the parent.

• Whether uprooting of the child from one parent to another will be averse to the interest and welfare of the child.

• The intention of the custodian any malicious i.e., wrong or false intention that may harm the child.

• Wishes of the minor child, if he is capable of forming an opinion of his own.

• Overall behaviour and conduct of the parties involved in the case.

• The Judge has sole discretion to decide what is the best for the child.

It is not the child over whom parents can fight over or claim. It is only the child’s welfare, growth, and safety.

ANALYSIS:

When it comes to the custody of children, all courts are unanimous in their view that the welfare of the child should be the paramount consideration. The welfare principle is deeply enrooted in deciding custody cases and intend at serving two-fold objectives. First, to ensure that the child grows and develops in the best possible environment. Secondly, the welfare principle is in the public interest that stands served with the optimal growth of the child. In determining as to what will be the welfare of the minor, the court would have regard to, inter alia, the age, sex and religion of the minor, the character and capacity of guardian, his nearness of kin to the minor, and the previous and existing relations of the minor with the proposed guardian. If the minor is old enough to form an intelligent preference, the court may also consider such a preference. The underline thread running through these acts is that the minor’s welfare should, in all cases, be the paramount consideration.

CONCLUSION:

Cases pertaining to family law are sensitive cases and involve a lot of emotions. When in relation to the minors they are all the more fragile, as they are stuck in it for something which is not their fault. Moreover, choosing one parent over the other is the most difficult choice a kid can face, as both the parents are necessary constituents of a child’s life. This may also lead a child into Parental Alienation Syndrome. Hence, it is important that these procedures be more child friendly, not only emotionally but also mentally. So far as considerations of children in custody cases is concerned, it can be well established that, their wishes are taken into consideration, if they are capable of forming an opinion. The Judiciary has time and again reiterated this principle through various case law. After all the best and utmost interest of the child lies in his happiness and well-being.

REFERENCES:

(1) Guardians and Wards Act, 1890

(2) Hindu Marriage Act, 1955

(3) Hindu Minority and Guardianship Act, 1956

(4) Divorce Act, 1869

(5) Parsi Marriage and Divorce Act, 1869

(6) Dasgupta. V. S. Misra, AIR 1985 Orissa 239

(7) V. P. Anil Kumar 2006 (12) SCALE 163

(8) Archana Barthakur v. Dr. Ranjit Barthakur, A.I.R.NOC 125 Gauhati

(9) Kumar v. Chetana, A.I.R 2001 SC 2179

(10) Stark v. Stark, 1910 P.190

(11) Ammal v. Ammal, A.I.R. 1924 Mad. 873

(12) Mamta Ashok Jagannath Bharuka, (2005) 12 SCC 452.

(13) Gayatri Bajaj Jiten Bhalla, (2012) 12 SCC 471

(14) Ulfat Bibi v. Bafati, (1997) 49 AIR 773]

(15) Law of Adoption, Minority, Guardianship & Custody: Paras Diwan