Updated: Aug 12, 2021
Author: Sanjay Nikaash
Institution: VIT Law School
Post-divorce or marriage annulment proceedings, the most vital and sensitive issues that arise are those that relate to child custody. Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. There are various personal laws and general laws that deal with matters regarding child custody in India, which include the Hindu Minority and Guardianship Act of 1956, the Indian Divorce Act of 1869, and the Guardians and Wards Act of 1890. This paper aims to briefly discuss the distinctions that exist with regard to various personal laws in matters pertaining to custody of minor children. In most cases, both parents continue to share legal child custody (guardianship) but one parent gains physical child custody. This paper aims to briefly discuss the distinctions that exist with regard to various personal laws in matters pertaining to custody of minor children. In most cases, both parents continue to share legal child custody (guardianship) but one parent gains physical child custody. Guardianship implies proprietorial rights, and custody implies the responsibility of raising a child. Legal custody includes the rights of the parents to make decisions that affect the welfare of the child, such as medical treatments, religious practices, and insurance claims. Physical child custody places the prime responsibility on parents for the child’s housing, educational needs, and food. In most cases, the non-custodial parent still has visitation rights. This paper seeks to address the various considerations taken into account by courts while determining matters relating to custody. This paper further seeks to analyze the inherent gender biases in the Indian legal system regarding child custody matters. Finally, this paper shall examine recent developments and trace the trend followed by current judgments in family law which seek to eliminate this gender bias.
The concept of custody and guardianships as enshrined in the Indian legal system can be traced to English law, specifically the Guardians and Wards act of 1890, from which the Hindu Guardianship and Minority Act are derived. When the divorce was granted statutory recognition by the Matrimonial Causes Act of 1857 in England, mothers were given independent legal recognition for the first time, as opposed to their earlier legal status being forged with their husbands upon marriage. Consequently, the concept of separated and divorced wives challenging the natural guardianship of their husbands came into public discourse. Courts in England started delivering judgments based on the principle that matrimonial litigation is not to punish the guilty but only to ensure the welfare of the child. This gave way to the concept of “welfare of the child being paramount consideration in custodial matters”. This paper shall analyze in detail what constitutes “welfare” and the inherent gender biases that exist with regards to its interpretation.
Criteria for Determining Custody of Minor Children:
The court, while exercising its parents patriae jurisdiction, takes into consideration a variety of factors in selecting a custodian. They are bound to give due importance to the child’s ordinary comfort, contentment, health, education, intellectual development, moral and ethical values, ties of affection, and favorable surroundings. Furthermore, the modern development of family law has deviated from the concept of treating children as mere chattel and has progressed towards a more inclusive approach, giving due importance to the preferences of the child. If the minor is old enough to form an intelligent judgment, Section 26 of the Hindu Marriage Act, provides for the wishes of the child to be made consistent with orders in relation to custody whenever possible. Granted, the wishes of the child will be of little value if it transpires to be reflective of the wishes of one of the parents which might have been assiduously instilled into the child. Additionally, the wishes of the child are subordinate to the primary consideration, that is the “welfare of the child”.
The factors listed out hierarchically in order of importance are,
the welfare of the child which is of the paramount consideration
wishes of the parents
wishes of the child
age and sex of the child
The Welfare of the Child:
One of the most well-settled propositions in family law is to secure the child’s paramount welfare in matters relating to custody. However, what constitutes “welfare” has had widely different interpretations. The Bombay High Court in the case of Carla Gannon v. Shabaz Farukh Allarakhi held that the child’s welfare was the supreme consideration, irrespective of the rights and wrongs that the parents contend. The Supreme Court has further held that the welfare of a child is not to be measured merely by money or physical comfort, but the word welfare must be taken in its widest sense that the tie of affection cannot be disregarded. However, numerous instances have evidenced that the welfare of the child is not the prime consideration in all matters pertaining to custody and backward notions of stereotypical gender roles continue to pervade the Indian legal system, which shall be explored by this paper subsequently.
Recent Developments in Custody Laws: Eliminating the Gender Bias:
The Law Commission of India on 23rd May 2015, submitted its report titled ‘Reforms in Guardianship and Custody Laws in India’, This report draws attention to children’s welfare being paramount in any decision relating to custody and everything else should be secondary to this consideration. In interpreting welfare, it also lays out an unprecedented framework in India for awarding joint custody of the child whenever it is possible citing examples of such provisions in the applicable legal systems of various jurisdictions such as the United States, Canada, Australia, the United Kingdom, South Africa, Netherlands, Thailand, Singapore, and Kenya. It aims to do this by amending the Guardianship and Wards Act, which currently does not provide for joint custody.
At present. Indian custody law largely ignores the concept of shared parenting, custodial disputes are reduced to ugly fights over sole custody of children, which is against the interests and welfare of the child. Cases generally conclude when the court names one of the parties as to the primary guardian, leaving the other with weekly or fortnightly visitation rights.
However, besides the commission’s recommendation, the landmark case of Vishnu Ubale vs Mrs. Archana Tushar Ubale, gave shape to the concept of shared custody by denying exclusive custody of an eight-year-old girl to any one parent. Instead, Justice PL Palsingankar, in consultation with parenting experts presented a detailed shared parenting plan for the child’s upbringing. It eliminated the need for a primary guardian giving both parents equal rights over the custody of their child.
In addition to this, taking into consideration the financial stability of both parents, the court ordered that the couple share not only the child’s custody but also her expenses. To quote exactly the views expressed by the court “The husband did not want any contribution from the wife for maintenance [but as] both are working and earning, both should contribute to the upbringing of their daughter”. Thus acknowledging the capabilities of a mother to provide for her child and according to her position in par with the father.
The Law Commission report aims to further the progressive outlook by seeking to eliminate the bias towards fathers from two pieces of legislation, the Hindu Minorities and Guardians Act, 1956, and the Guardians and Wards Act, 1890.
It recommends these sections, which are often used to prolong cases, be “amended to remove the superiority of one parent (father) over the other (mother), and that both father and mother be simultaneously treated as natural guardians”.
In English Law, there are explicit legislative provisions that prohibit preferential treatment to either parent in these matters. However, there exists an inherent gender bias in Indian laws. The natural guardian of a Hindu minor is primarily the father, only after which is the mother. However, in the case of a child below the age of five years, the mother is “ordinarily” given guardianship. This is because of the presumption that children of a tender age cannot manage without maternal affection. Though the act specifies the term “ordinarily”, the presumption, albeit a rebuttable one, in favour of the mother cannot be overemphasized as it can only be deviated from in the case of strong reasons. Furthermore, the onus of proof lies on the father to “…disclose cogent reasons that are indicative of the livelihood of the welfare and interest of the child being undermined or jeopardized if the custody is retained by the mother”. The courts in India have consistently adopted the view laid down in Re Kamal Rudra Das J. expressed the same view vividly thus:
“I have no doubt in my mind that the mother’s lap is God’s own cradle for a child of this age, and that as between father and mother, other things being equal, a child of such tender age should remain with mother.
Existence of a Gender Bias in Muslim Personal Law:
This gender bias is not exclusive to Hindu laws, but pervades all personal laws in India. The Muslim Personal Law (Shariat) Application Act, 1937 which provides for the application of Shariat law to matters relating to custody of children illustrates this in the context of Islam. It provides that the foremost right to custody of minor children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct, this is recognized as the right of “hizanat”.
Hizanat establishes a rule that the mothers custodial right over the son terminates when he completes the age of 7 years and over the daughter when she attains puberty. The other cannot surrender her right to any person including her husband, the father of the child.
In the case of Muhammad Tahir Vs. Raees Fatima , the Supreme Court disallowed the father’s petition for custody of the minor children and disagreed with his contention that he was allowed to take custody from the Mother because the mother was illiterate, had no source of income and that she had developed an illicit relationship with another person. The consideration of “welfare of the child” in custodial matters is interpreted in such a way as to merely provide lip service to the ideal. In reality, matters related to preconceived notions of gender stereotypes have an unnecessary importance.
The fathers right of hizanat comes into play only after the completion of the age by the child upto which the mother or other females are entitled to custody, or in the absence of such females. However, after this age, the father has an absolute right of hizanat. Courts in India are beginning to recognize the importance of gender equality and are delivering judgements in consonance with the report. The Indian Law Commission, as early as 1989 recommended amending Section 6(a) of the Hindu Minority and Guardianship act to “constitute both the father and the mother as being natural guardians ‘jointly and severally,’ having equal rights in respect of a minor and his property.” Though this never materialized into an actuality, it is illustrative of the recognition of bias in custodial laws and the attempts made to remedy this
However, the attempt to change section 19 of the Guardians and Wards Act, 1890 to include the mother right of proprietary guardianship so as to eliminate the distinction between parents and reflect gender equality was witnessed by the 2010 amendment. The Law Commission report of 1989 subsequently went on to address that the Hindu Minority and Guardianship Act, 1956 gave explicit statutory recognition to the objectionable proposition that the father is entitled to the custody of the minor child in preference to the mother. Apart from the fact that there is no rational basis for according an inferior position in the order of preference to the mother vis- à-vis the father, it emphasized that the proposition is vulnerable to challenge on several grounds. Firstly, disclosing a blatantly obvious anti-feminine bias. It reveals age-old distrust for women and feelings of superiority for men and inferiority for women. Whatever may have been the justification for the same in the past, assuming there was some, there is no warrant for persisting with this ancient prejudice, at least after the ushering in of the Constitution of India which proclaims the right of women to equality and guarantees non-discrimination on the ground of sex under the lofty principle enshrined in Article 15. In fact, clause (3) of Article 15, by necessary implication, gives a pre-vision of beneficial legislation geared to the special needs of women and children with a pro-women and pro-children bias. It is indeed strange that in the face of the said constitutional provision, the discrimination against 22 women has been tolerated for nearly four decades.
The premise that the welfare of the child is paramount has such widely contrasting interpretations, that it dilutes the entire concept. However, there have been certain positive developments in this context as well, such as the initial principle which laid down that custody should ordinarily be given to the innocent party. This was overruled and currently there exists no bar in giving custody to a parent that committed the matrimonial offence that caused the divorce.
Though, seemingly, it might appear like India is approaching a more gender-neutral arena in terms of custody laws, the various aforementioned judgements are not absolute in awarding the status of custodian to the mother and are qualified by certain prerequisites. Such as, when it is mutually decided between the parents that the mother will act as the guardian where. A point to consider is that only when the father has abdicated his responsibility and has consensually agreed to elevate the mother to the status of a natural guardian would such a status come into effect. Thus diluting the aim of gender equality which is sought to be achieved in such laws. Despite the trend exhibited in recent judgements, courts are invested with a wide discretion with regards to custody matters. They may pass any order they “deem just and proper”. Thus a true change cannot be affected without altering the mindset of the judiciary, which can only be done from the grassroots level.
The Hindu Marriage Act, 1955, 26.
G. Vishnudevendramma v. G. Padmaja,(2011) 4 ALL MR 5; Bholaram v. Parwati Sahu, AIR 2011 CHH 38.
The Guardians and Wards Act, 1890, 7,17.
Paras Diwan, Law of Marriage and Divorce, 770 (6th ed., 2011) (‘Paras’).
Ashutosh Mookerjee, Marriage Separation Divorce and Maintenance, 652 (5th ed., 2015).
Law Commission of India, Removal of discrimination against Women in matters relating to Guardianship and Custody of Minor Children and Elaboration of the Welfare Principle, Report No. 133, 4.3 (August, 1989),