Child Custody in Divorce cases in India

Introduction:
Marriage, a sacred union, can sometimes dissolve due to unforeseen circumstances or challenges
within the relationship. While some children cope with divorce in an expected manner, others
experience significant emotional and psychological effects. Younger children, particularly those
under the age of four, are especially vulnerable as this stage marks crucial mental, emotional, and
social development.
Child custody refers to the responsibility of caring for, supervising, and making decisions for a
child. In custody cases, courts are not strictly bound by statutes, procedural rules, or legal
precedents. The concept of child custody was formally recognized in 1890 under the Guardians
and Wards Act. Courts determine custody for children under the age of 18, prioritizing their well-
being. During divorce proceedings, custody arrangements often become the primary issue for
judicial resolution. Courts prioritize the best interests of the child while determining custody,
considering factors such as financial stability, emotional support, and the ability to provide a safe
environment.
A child has the right to financial support under nearly all personal laws. Additionally, the Code of
Criminal Procedure, 1973 ensures this right, providing a legal framework for child maintenance
regardless of religious or personal laws.
The problems relating to child custody has increased immensely during the corona Pandemic as
the divorce rates have spiked up in the lockdown. In Mumbai, it has been recorded that the
women related issue cases and divorce cases has increased by three times since COVID-19
lockdown. It can be seen that from an average of 1000 cases per month it has increased to 3000
cases per month and the demand for advocates has also equally increased.

Types of Child Custody

1.Legal Custody
Legal custody does not necessarily mean the child resides with the parent, but rather grants them
the authority to make major life decisions, including those related to education, healthcare, and
overall welfare. In most cases, both parents share this responsibility. However, if the divorce is
contentious, the court determines which parent will retain legal custody.
2.Sole Custody
Sole custody is granted when one parent is deemed unfit to raise the child, giving full custody
rights to the other parent. This arrangement ensures the child’s safety and well-being when the
other parent is unable to provide proper care.
3.Physical Custody
Physical custody means the child resides with one parent, who becomes their primary guardian.
However, the non-custodial parent is typically granted scheduled visitation rights. This
arrangement aims to provide the child with a stable environment while maintaining a meaningful
relationship with both parents.
4.Joint Custody
A common arrangement for both divorced and unmarried parents, joint custody allows the child
to spend time with both parents separately, ensuring an equitable division of parental
responsibilities and involvement in the child’s life.
5.Grandparent Visitation/Custody
In certain cases, the court may grant visitation rights or even custody to grandparents,
considering the best interests of the child and the specific circumstances of the case.

Child Custody Provisions Under Indian Law

Indian law provides various legal frameworks for child custody, taking into account both
personal laws and the Guardians and Wards Act, 1890. While personal laws are considered, the
primary focus remains on the child’s welfare, sometimes overriding religious provisions.
Under Hindu Law
The Hindu Marriage Act, 1955 (Section 26) allows courts to pass orders regarding child
custody, maintenance, and education. A pending decree must be resolved within 60 days from the
date of the court’s notice.
The Hindu Minority and Guardianship Act, 1956 grants biological Hindu parents the right to
seek custody. According to Section 6(a), the father is the natural guardian of a boy or an
unmarried girl, followed by the mother. However, the father does not automatically gain custody
solely by virtue of being the natural guardian. Courts now evaluate factors such as the mental
health, financial stability, and overall capability of both parents before deciding custody, rather
than relying on traditional assumptions. Mothers are generally given custody of children below
five years of age, while fathers usually receive custody of boys and unmarried daughters, subject
to exceptions.The custody of Illegitimate children is initially given to the mother, followed by
the father.
Despite these legal provisions, studies show that 85–90% of custody cases result in children
being placed under their mother’s care. However, courts now adopt a case-by-case approach,
carefully assessing each parent’s suitability and the child’s specific needs. Given the complexity
of custody disputes, courts must meticulously analyze each case to determine the arrangement
that best serves the child’s welfare.
Under Muslim Law
Under Muslim law, the father is recognized as the sole guardian of the child, but the mother
holds the primary right to custody. The specific rules governing custody depend on the school of
Islamic jurisprudence:
Shia School: The mother’s custody rights over a boy end when he reaches two years of age,
while for a girl, she retains custody until the child attains puberty.
Hanafi School: The mother’s custody of a boy extends until the age of seven, while for a girl, it
continues until puberty.
Hizanat (custody) grants the mother primary custody of children, provided she is deemed fit by
the court. Despite these classical rules, modern legal interpretations provide greater flexibility
under the Guardians and Wards Act, 1890. Courts now actively apply the ‘best interests of the
child’ standard when making custody decisions, rather than strictly adhering to religious
doctrines.
Under Christian Law
Christian custody laws are governed by the Indian Divorce Act, 1869 and the Divorce Act,
2000. Section 41 empowers courts to decide custody, maintenance, and education matters for
Christian children.
The Supreme Court has ruled that all child custody orders are temporary and can be modified
based on the child’s evolving needs.
Under Parsi Law
Like Christians, Parsis follow the Guardians and Wards Act, 1890 for custody matters.
Section 43 of the Parsi Marriage and Divorce Act, 1936. This provision grants courts the
power to determine child custody while also allowing mothers to claim maintenance for the
child’s upbringing.allows mothers to claim child maintenance. Courts must decide on a child’s
guardianship within 60 days.
Under the Special Marriage Act
Section 38 applies when parents belong to different religions or have had a civil marriage. The
court ensures that custody decisions align with the child’s best interests, explaining the legal
process accordingly.
Guardians and Wards Act, 1890
The Guardians and Wards Act, 1890, one of India’s earliest codified laws on child custody,
remains a secular law applicable to all communities, except where personal laws provide specific
guidance. This Act establishes that, while a father generally has the primary right of
guardianship, courts must prioritize the child’s welfare over parental rights. The definition of
‘guardian’ under this Act is similar to that in the Hindu Minority and Guardianship Act, 1956
.

Writ of Habeas Corpus and Child Custody

When a parent is wrongfully denied custody, they can file a writ of habeas corpus to regain
custody. The court’s jurisdiction is territorial rather than strictly under Section 99 of the
Guardians and Wards Act, 1890.
In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, the Supreme Court held that the unlawful
detention of a minor by someone without legal custody amounts to wrongful confinement. In
such cases, a habeas corpus writ can be issued to restore custody to the rightful guardian.
However, custody disputes should generally be resolved under the Hindu Minority and
Guardianship Act or the Guardians and Wards Act, with habeas corpus petitions being used only
in exceptional cases.
In Sarita Sharma v. Sushil Sharma, a custody battle arose between separated parents. The
Family Court granted custody to the father, but the mother took the children to India. The High
Court, upon the father’s habeas corpus petition, ordered the mother to hand over custody.
However, the Supreme Court ruled that instead of allowing the habeas corpus petition, the High
Court should have conducted a proper hearing, focusing on the child’s best interests rather than
treating it as an issue of illegal detention.
In Rosy Jacob v. Jacob A. Chakramakkal, the court emphasized that children are not mere
possessions of their parents. The absolute parental right over a child must give way to
considerations of the child’s welfare. The court must strike a balance between parental rights and
the child’s well-being to ensure their normal and balanced development.
Ultimately, courts must prioritize the child’s welfare, considering their comfort, health,
education, and overall development. A rushed decision should be avoided, even in cases
involving allegations of illegal detention.

Parental and Child Rights in Custody Cases

Divorce often leads to prolonged legal disputes over child custody, significantly impacting both
parents and children. Custody refers to the responsibility of caring for, supervising, and making
decisions for a child. The custodial parent bears the primary responsibility for the child’s
upbringing, while the non-custodial parent may face restrictions, such as requiring court
permission for travel with the child.
A fundamental conflict in custody disputes lies in whether to view the child as an independent
individual or within the framework of their familial ties. Courts generally uphold the doctrine of
‘parental autonomy,’ recognizing a parent’s inherent right to their child’s custody. However, this
right is not absolute, as seen in cases like V. Meenapushpa v. V. Ananthan Jayakumar, where
custody has been granted to grandparents based on the child’s preference. This highlights the
tension between parental autonomy and the court’s role in ensuring the child’s best interests.

Determining the Child’s Best Interests

While divorce laws cannot entirely shield children from the emotional harm caused by parental
separation, they aim to minimize its impact by prioritizing the child’s welfare. Though there is no
fixed legal framework for determining a child’s best interests, courts typically consider:
 The child’s age, gender, and maturity, as well as the parents’ ability to care for them.
 Emotional bonds between the child and each parent.
 The ability of each parent to provide basic necessities like food, shelter, education, and
medical care.
 The child’s existing living environment, including school and community ties.
In contested custody cases, neither parent can assume that their lawyer also represents the child’s
best interests. Courts act as parens patriae, ensuring that the child's welfare remains the primary
concern. However, adversarial legal proceedings may sometimes overlook the child’s unique
perspective. To mitigate this, a guardian ad litem is often appointed to represent the child and
assist the court in making an informed decision.
When applying the ‘best interest’ standard, courts must also weigh the child’s custodial
preference. However, judges retain broad discretion, and children’s opinions may not always be
decisive. Some scholars argue that children should have a more substantial say in determining
their custodial arrangements.

Provision for Child Maintenance

1.Code of Criminal Procedure, 1973 (Cr.P.C.)
Sections 125-128 Cr.P.C. provide for maintenance of children, irrespective of religion. In Dilip
Kumar v. State of UP the court held that maintenance may be granted from the date of the order
or application, as deemed just by the court.
Section 125(1)(b) Cr.P.C. States that the Fathers are obligated to maintain minor children,
whether legitimate or illegitimate, if they cannot support themselves. This extends even to
married minor daughters. Section 125(1)( C) Cr.P.C, If a legitimate or illegitimate child has a
physical or mental disability, the father’s responsibility to provide maintenance continues beyond
the child’s majority.
In Pathumma v. Cholamarakkar: To claim maintenance under this clause, it must be
established that the disability prevents self-sustenance.

2.Maintenance for Unmarried Major Daughters

While Cr.P.C. generally limits maintenance to minors, the Hindu Adoption and Maintenance Act,
1956 mandates maintenance for an unmarried daughter even after attaining majority until she
marries. Courts have extended maintenance under Section 125 Cr.P.C. to unmarried major
daughters to avoid multiple proceedings
3.Maintenance for Children from Void Marriages
Bakulabai v. Gangaram: Even if a marriage is void, children from such unions are entitled to
maintenance under Sections 125(1)(b) & (c) Cr.P.C.
4.Parental Responsibilities Post-Divorce
Fathers are legally responsible for maintenance even if the child is in the mother’s custody.
However, mothers also have a moral duty to support their children, even if the child resides with
the father after divorce.

Effect of Remarriage on Child Custody

The remarriage of a parent does not automatically affect their right to child custody. The
Supreme Court clarified this issue in Lekha v. P. Anil Kumar, ruling that a mother’s remarriage
cannot be used as a reason to deny her custody of the child. Similarly, if a father remarries, it
does not disqualify him from seeking custody.
Courts continue to prioritize the best interests of the child, evaluating factors like emotional
stability, financial security, and parental capability, rather than making custody decisions based
solely on remarriage.

Landmark Judgements:
Gaurav Nagpal v. Sumedha Nagpal (2008) 4 SCC 649
The welfare of the child is paramount, overriding parental rights. The Supreme Court ruled that
custody must be decided based on the child’s happiness, security, and overall well-being rather
than legal entitlements of parents.
Roxann Sharma v. Arun Sharma (2015) 8 SCC 318
Custody of children below 5 years is generally given to the mother. The Court held that the
mother should have custody of a child under five unless proven unfit, reinforcing the Hindu
Minority and Guardianship Act, 1956.
Athar Hussain v. Syed Siraj Ahmed (2010) 2 SCC 654
Personal laws must yield to the child’s welfare. The Supreme Court ruled that Muslim personal
law on custody (Hizanat) is not absolute. The child’s best interests take precedence over religious
customs.
Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413
The child’s preference is a crucial factor in custody decisions. The Court emphasized that where
the child is mature enough, their wishes should be considered before awarding custody.
Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673
Financial status is not the sole criterion for custody. The Court ruled that just because one parent
is financially better off does not automatically mean they should get custody. The child’s
emotional and psychological needs matter more.
Anjali Kapoor v. Rajiv Baijal (2009) 7 SCC 322
Parental rights are secondary to the child’s well-being. The Supreme Court stated that even if the
father is the natural guardian, the child’s welfare remains the guiding principle.
Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840
Custody orders can be modified based on changing circumstances. The Supreme Court held that
custody is not a final order. If the child’s welfare demands a change in custody, courts can revise
their decisions.
Vandana Shiva v. Jayanta Bandhopadhya (2009) SCC Online Del 2341
Joint custody can be considered if beneficial to the child. The Delhi High Court allowed joint
custody, ensuring the child had regular interaction with both parents.
Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42
Guardianship and custody can be given to third parties if parents are unfit. The Court ruled that
custody is not limited to biological parents if it is against the child’s welfare.
Conclusion
Divorce not only affects the spouses but also has a profound emotional impact on children, often
leading to feelings of loneliness, insecurity, and psychological distress. In DSG v. AKG, the court
opted for shared parenting, recognizing that denying access to either parent could harm the
child’s mental well-being. Children of divorced parents may struggle with societal stigma, peer
rejection, and lack of attention from the custodial parent, leading to social withdrawal and
emotional trauma. While parents should not stay in toxic relationships, they must ensure that
their separation minimizes adverse effects on their child’s well-being.