Child Custody

 Child Custody in India

Statues

1. Guardians and wards Act - 1890
2. The Hindu Minority and Guardianship Act - 1956 - link

Important Points

1. A parent cannot be guest in the life of their child
2. Visitation granted for limited hours may not be sufficient for the child to have comfortable time with father / mother 
3. Such act of parent in separating a child from the other parent should be nipped in the bud otherwise the separated parent ends up becoming a guest in life of the child.
4. Overnight custody must be encouraged wherever possible and mere meeting and spending time with parent for couple of hours in court premises will not serve any purpose of visitation as child will be under psychological pressure and will not be comfortable.
5. Laws are made for citizens and citizens are not made for law.
6. Love and affection of both the parents are considered to be the basic human right of a child. 
1. Thus the element of the access of the child to a non-custodial parent assumes critical salience.

Questions

1. What are the various modes of Custody?
1. Law provides 2 types relief for a child in matrimonial disputes
1. Access - to both parents ( custodian and non custodian)
2. Custody - Interim and permanent 
2. Law also provides for maintenance and well being of child
1. Section 125 of Code of Criminal Procedure 1973 
2. Section 26 of Hindu Marriage Act 1955
2. What provisions under law Custody can be applied?
1. GWA - Section 7 and 12
2. Interim Custody - Both parents can seek custody, gender balanced.
1. Section 26 of Hindu Marriage Act 1955
2. Section 21 of Prevention of Domestic Violence Act 2005

“Section 21. Custody orders.—Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any STAGE of hearing of the application for protection order or for any other relief under this Act grant TEMPORARY custody of any child or children to the aggrieved person or the person making an application on her behalf and specify, if necessary, the arrangements for visit of such child or children by the respondent:

 Provided that if the Magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the Magistrate shall refuse to allow such visit.”

3. Can a Writ of Habeas corpus be applied in Custody of Child matters?
1. Ordinarily it is NOT allowed to DIRECTLY file Habeas Corpus with Supreme Court u/s A32 and High Court of State u/s A226 of Constitution of India.
2. Writ of habeas corpus can very well be pressed into service for granting the custody of a child to a spouse if the welfare of child dictates
3. Habeas corpus  proceedings is not to justify or examine the legality of the custody.
4. HC is a medium through which the custody of the child is addressed to the discretion of the court.
5. HC is prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by law is either NOT available or is ineffective.
6. Use of Habeas corpus - direct return of the child or decline to change the custody of the child
1. Gohar Begam vs Suggi  1960 SIR 93
1. recovery of a illegitimate female infant of an unmarried sunni muslim mother, took note of the position under Mohammedan Law that the mother  of an illegitmate female infant is entitled to the custody and refusal to restore sucha a child to mother would result in illegal detention u/s Section 491 of CrPC
2. Veena Kapoor Vs Varinder Kumar Kapoor 1981 3 SCC 92
3. Yashita sahu Vs State of Rajastanh 2020 3 SCC 67
1. Elizabeth Dinshw Vs Aryand M Dinshwa
2. Nithya Anand Raghavan Vs State of Delhi
3. Lahari sakhamuri vs sobhan Kodali
4. What are the consideration while granting child custody?
1. Paramount welfare of child
2. Mental maturity, needs & wishes of child
3. Opportunity for wholesome growth 
4. Access to siblings and ordinary conditions of residence.
5. Virtual Visitation?
6. Child custody is continuous matters?
7. Access to Grandparents of child?
8. What are remedies on violation of custody orders?
9. What of child to mother who has eloped with non husband?
10. Joint Custody and Shared Parenting?
11. Applicability of International custody orders in India?
12. What is Parental Alienation
13. What factors don't favor Child custody petitions?
1. Inconsistent mindset 
2. mother wanted child to speak against his father
3. Change of advocates - her thinking towards legal advice and legal proceedings is unstable.

Rules

• Favoring mothers
• Tender year rule
• Section 6 of Hindu Minority and Guardianship Act 1956 - father is first natural guardian followed by mother. 
• in case the minor is below 5y, the child custody shall ordinarily lie with mother.

Arguments of custodian parent to support their conduct & actions

1. Even if court comes to a conclusion that the mother is guilty of disobeying the orders of this Hon'ble court, she may be pardoned and requested to take a lenient view 
1. since interest of child is paramount important
2. actions done by her in welfare of the child only 
3. Mother tenders unconditional apology.
2. The issue of welfare of the minor cannot be determined on SOLE parameter of work commitment of one parent and availability of ample time with another
3. The fact applicant is busy , cannot be construed to be UNFAVORABLY judge her suitability to have custody of minor.

Arguments to remove custody of one parent

1. There is material prima facie available indicating custody to the respondent is detrimental to the well being of the minor.

Case Law 

1. Vivek Singh Vs Romani Singh 2017 3 SCC 231
1. Both parents are entitled to have custody of the child
2. The child cannot be denied legitimate right of having company of his mother and father 
3. Child cannot be deprived of his right to have their love, affection and care
2. Gaurav Nagpal Vs Sumedha Nagpal
1. Principles in relation to custody of minor child
1. Welfare of minor child is the first and paramount consideration and in order to determine child custody the jurisdiction exercised by the court reset on its own inherent equality powers where courts acts as parens partiae.
2. Absolute right of parents over the destinies and lives of their children, in modern changes social conditions must yield to the consideration of their welfare.
3. 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.
3. Nil ratan Kundu Vs Abhijit Kundu 
1. Law relating to custody of a child is fairly well-settled and it is this.
2. In deciding a difficult and complex question as to custody of minor, a court of law should keep in mind relevant statutes and the rights flowing therefrom. 
3. But such cases cannot be decide solely by interpreting legal provisions. it is a humane problem and is required to be solved with human touch. 
4. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. 
5. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian the court is exercising parens patriae jurisdiction and is expected nay bound to give due weight to a child 
1. Ordinary comfort
2. contentment
3. health
4. education
5. intellectual development
6. favorable surroundings
6. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally or we may say even more important essential and indispensable consideration.
7. 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.

Sources

1. Parental Alienation - Four Factor Model - link
2. The Nehru Center

1. Kailash Satyarthi - link