Custody Laws

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Custody Laws

Category: Home \ Family law

Article: Custody Under Hindu, Muslim, ChristianAnd Parsi Laws

Child custody is a term used in family lawcourts to define legal guardianship of a child

under the age of 18. During divorce or marriageannulment proceedings, the issue of childcustody often becomes a matter for the court todetermine. In most cases, both parents continueto share legal child custody but one parent gainsphysical child custody. Family law courtsgenerally base decisions on the best interests ofthe child or children, not always on the bestarguments of each parent.In general, courts tend to award PHYSICALchild custody to the parent who demonstrates the most financial security, adequate parenting

skills and the least disruption for the child. Both parents continue to share legal child custodyuntil the minor has reached the age of 18 or becomes legally emancipated. Legal custody meansthat either parent can make decisions which affect the welfare of the child, such as medicaltreatments, religious practices and insurance claims. Physical child custody means that oneparent is held primarily responsible for the child's housing, educational needs and food. In mostcases, the non-custodial parent still has visitation rights. Many of the religions practicing inIndia have their own personal laws and they have their different notion of custody.

Custody Under Hindu Law:All the personal law matrimonial statutes make provisions for dealing with the issue of childcustody. The provisions in the matrimonial Acts can, however, be invoked only when there aresome proceedings pending under the Act. Hindus have an additional Act, viz the Hindu

Minority and Guardianship Act 1956 (HMGA). Apart from this, there is the Guardians andWards Act 1890 (GWA). This is a secular law for appointment and declaration of guardians andallied matters, irrespective of caste, community or religion, though in certain matters, the court


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will give consideration to the personal law of the parties. The provisions of the HMGA (andother personal laws) and the GWA are complementary and not in derogation to each other, andthe courts are obliged to read them together in a harmonious way. In determining the question ofcustody and guardianship, the paramount consideration is the welfare of the minor. The word

`welfare' has to be taken in its widest sense, and must include the child's, moral as well asphysical well-being, and also have regard to the ties of affection.

The English and Indian decisions are replete with such statements that : (i) the children of tender

years should be committed to the custody of the mother, (ii) older boys should be in the custodyof the father, and (iii) older girls in the custody of the mother. But these are judicial statementsof general nature and there is no hard. and fast rule. As to the children of tender years it is now afirmly established practice that mother. should have their custody since father cannot providethat maternal affection which are essential for their proper growth. It is also now ac for properpsychological development of children of tender years ma is indispensable.

The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down thatcustody of a child upon the age of five should ordinarily be with the mother. Under otherpersonal laws, though it is no such statutory provision, the Indian courts have consistently takenview. The following observation of Beaumont, CJ. represents the judicial knew ......if mother isa suitable person to take charge of the child quite impossible to find an adequate substitute forher for the child.

In 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, andthat as between father and mother, other things being equal, a child of such tender age shouldremain with mother.'

But a mother who neglects the infant child as she does not want to sacrifice the type of life sheleading can be deprived of custody.In respect of older children our courts take the view that the male children above the age ofsixteen years and female children above the age of fourteen years, should not ordinarily be

compelled to live in the custody to which they object.' However, even the wishes of the maturechildren will be given consideration only if they are consistent with their welfare! InVenkataramma v.. Tulsi,' the court disregarded the wishes of the children as it found these toinduced by wholesale persuasion and were even tortured.

Custody to third persons. -Ordinarily, custody should be given to either of the parents. Butwhere welfare so requires, custody may be given to a third person. In Baby v., Vijay grantingcustody of two minor children to maternal grandfather, the court observed that even if the fatherwas not found unfit, custody might be given to a third person in the welfare of the child.

Custody Under Muslim Law:The first and foremost right to have the custody of children belongs to the mother and she

cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has theright of custody so long as she is not disqualified. This right is known as right of hizanat and itcan be enforced against the father or any other person. The mothers right of hizanat was solelyrecognized in the interest of the children and in no sense it is an absolute right

SonAmong the Hanafis, it is an established rule that mothers right of hizanat over her sonterminates on the latters completing the age of 7 years. The Shias hold the view that the motheris entitled to the custody of her son till he is weaned. Among the Malikis the mothers right ofhizanat over her son continues till the child has attained the age of puberty. The rule among theShafiis and the Hanabalis remains the same.

DaughterAmong the hanafis the mother is entitled to the custody of her daughters till the ageof puberty and among the Malilikis, Shafiis and the Hanabalis the mothers right of custodyover her daughters continues till they are married. Under the Ithna Ashari law the mother is


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entitled to the custody of her daughters till they attain the age of 7. The mother has the right ofcustody of her children up to the ages specified in each school, irrespective of the fact whetherthe child is legitimate or illegitimate. Mother cannot surrender her right to any person includingher husband, the father of the child. Under the Shia school after the mother hizanat belongs tothe father. In the absence of both the parents or on their being disqualified the grandfather isentitled to custody. Among the Malikis following females are entitled to custody in the absenceof mother:1. maternal grandmother

2. maternal great grandmother3. maternal aunt and great aunt4. full sister5. uterine sister6. consanguine sister7. paternal auntFathers right of hizanatAll the schools of Muslim law recognize fathers right of hizanatunder two conditions that are: on the completion of the age by the child up to which mother or other females are entitled tocustody. In the absence of mother or other females who have the right to hizanat of minor children.

Father undoubtedly has the power of appointing a testamentary guardian and entrusting himwith the custody of his children. Other male relations entitled to hizanat are:1. nearest paternal grandfather2. full brother3. consanguine brother4. full brothers son5. consanguine brothers father6. full brother of the father7. consanguine brother of the father8. fathers full brothers son9. fathers consanguine brothers sonAmong the Shias hizanat belongs to the grandfather in the absence of the father.

When Right if Hizanat may be lost by Hazina or Hazin. All the schools of Muslim law agreethat a hazina should be:i) of sound mindii) good moral characteriii) living at such a place where there is no risk, morally or physically to the childiv) of such a age which would qualify her to bestow on the child the care it may need (notapplicable to the mother)

The Shia law is very categorical and lays down that a person who has ceased to be muslim is notentitled to the cutody of the child. Also hazina who marries a person not related to the childwithin the degrees of prohibited relationship forfeits her right of hizanat. The cardinal principalof hizanat in muslim law is the welfare of the child. The rights of hizanat cannot be lost onaccount of her poverty or want of funds to maintain the child. Also neither the father nor themother has the right to remove the child from the matrimonial home. Hazin may be deprived ofthe custody of the child if he is a minor or of unsound mind. Also hazin who is leading animmoral life or who is a profligate has no right to the custody of the child.

De Facto Guardian:A de facto guardian is a concept under which past act results in present status and a de factoguardian is a self appointed guardian. Tayabji defines a de facto guardian as an (unauthorized)person who as a matter of fact has the custody and care of the person and/or of his property. Ade facto guardian has no power of alienation of a minors property and that such an alienation is

void. He has no power to convey any right of interest in immovable property which the transfercan enforce against the minor. A partition of property effected by the de facto guardian is voidand not binding on the minor. The period of limitation to set aside a transfer by the de facto


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guardian is 12 years.

Custody Under Christian Law:Christian law per se does not have any provision for custody but the issues are well solved bythe Indian Divorce Act which is applicable to all of the religions of the country. The IndianDivorce Act, 1869 contains provisions relating to custody of children. Section 41 of the said Actprovides with the powers to make orders as to custody of children in suit for separation. -In anysuit for obtaining a judicial separation the Court may from time to time, before making its

decree, make such interim orders, and may make such provision in the decree, as it deemsproper with respect to the custody, maintenance and education of the minor children, themarriage of whose parents is the subject of such suit, and may, if it think fit, direct proceedingsto be taken for placing such children under the protection of the said Court.

In the case ofRosy Jacob v. Jacob A. Chakramakkal the Court held that:All orders relating to the custody of the minor wards from their very nature must be consideredto be temporary orders made in the existing circumstances. With the changed conditions andcircumstances, including the passage of time, the Court is entitled to vary such orders if suchvariation is considered to be in the interest of the welfare of the wards. It is unnecessary to referto some of the decided cases relating to estoppel based on consent decrees, cited at the bar.Orders relating to custody of wards even when based on consent are liable to be varied by theCourt, if the welfare of the wards demands variation. The Court, after a decree of judicialseparation, may upon application (by petition) for this purpose make, from time to time, all suchorders and provision, with respect to the custody, maintenance and education of the minorchildren, the marriage of whose parents is the subject of the decree, or for placing such childrenunder the protection of the said Court, as might have been made by such decree or by interimorders in case the proceedings for obtaining such decree were still pending.In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in,or removed to, a High Court, the Court may from time to time, before making its decreeabsolute or its decree (as the case may be), make such interim orders, and may make suchprovision in the decree absolute or decree and in any such suit instituted in a District Court, theCourt may from time to time, before its decree is confirmed, make such interim orders, and may

make such provision on such confirmation, as the High Court or District Court (as the case maybe) deems proper with respect to the custody, maintenance and education of the minor children,the marriage of whose parents is the subject of the suit, and may, if it thinks fit, directproceedings to be taken for placing such children under the protection of the Court.

In Halsbury's Laws of England, the Law is succinctly in the following terms:-"428. Infant's welfare paramount. In any proceedings before any Court, concerning the custodyor upbringing of an infant or the administration of any property belonging to or held on trust foran infant or the application of the income thereof, the Court must regard the welfare of theinfant as the first and paramount consideration, and must not take into consideration, whetherfrom any other point of view, the claim of the father, or any right at common law possessed bythe father in respect of such custody, upbringing administration or application is superior to thatof the mother, or the claim of the mother is superior to that of the father. This provision applieswhether both parents are living or either or both is or are dead.

Even where the infant is a foreign national, the Court, while giving weight to the views of theforeign Court, is bound to treat the welfare of the infant as being of the first and paramountconsideration whatever orders may have been made by the Courts of any other country."

In the case ofRosy Jacob v. Jacob A. Chakrammakkal, this Court has observed:"Where, however, family dissolution due to some unavoidable circumstances becomesnecessary the Court has to come to a judicial decision on the question of the welfare of thechildren on a full consideration of all the relevant circumstances. Merely because the father

loves his children and is not shown to be otherwise undesirable cannot necessarily lead to theconclusion that the welfare of the children would be better promoted by granting their custodyto him as against the wife who may also be equally affectionate towards her children and


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otherwise equally free from blemish, and who in addition because of her profession andfinancial resources, may be in a position to guarantee better health, education and maintenancefor them. The children are not mere chattels; nor are they mere playthings for their parents.Absolute right of parents over the destinies and the lives of their children has, in the modernchanged social conditions, yielded to the considerations of their welfare as human beings so thatthey may grow up in a normal balanced manner to be useful members of the society and theguardian Court in case of a dispute between the mother and the father, is expected to strike a justand proper balance between the requirements of welfare of the minor children and the rights of

their respective parents, over them.

Custody Under Parsi LawThe issue of custody is dealt with by the Guardians and Wards Act of 1890, under which it is awell-established principle that the welfare of the child is paramount - i.e., the most importantthing considered by the Guardian Court when deciding custody.

No matter what customs or personal law rules the parents community or sect follows regardingcustody, any parent who wants custody and does not presently have custody has to seek custodyfrom the Guardian Court. In other words, there is never any automatic transfer of a childscustody to a particular parent.

Factors Considered by the Courts when Granting Custody# The welfare of the minor is very broadly defined and includes many diverse factors, notably:# the age, sex and religion of the minor: courts take into account the personal law of the father).Thewelfare of younger children is generally regarded as being in the mothers custody;# the character and capacity of the proposed guardian: courts usually reject baseless allegationsagainst mothers;# the wishes, if any, of a deceased parent, for example specified in a will;# any existing or previous relations of the proposed guardian with the minors property: courtsdo not look kindly on guardians seeking custody just in order to have control over the minorsproperty. But if, for example, the minors property is shared with the mother and she isotherwise a suitable guardian, the court will regard the property relationship as an additional

factor in the mothers favour.# the minors preference if she/he is old enough to form an intelligent preference, usuallyaccepted as about 9 years old.# whether siblings would be divided: courts prefer to keep children united and award custody ofboth to either the mother OR the father.# whether either/both parents have remarried and there are step-children: Although the mothersremarriage to someone who is not the childrens close blood-relative often means the court willnot grant her custody, this rule is not strictly followed. Although the fathers remarriage usuallydenies him custody, sometimes the courts agree to grant him custody especially when thechildrens step-mother cannot or will not have her own children.# whether the parents live far apart: courts sometimes do not give the mother custody becauseshe lives very far away from the father who is the natural guardian. But in 1994 an Uzbekwoman living in Uzbekistan was given custody; the judge said modern transport had shorteneddistances and meant that the father could depart from his home in the morning and return byevening.# the childs comfort, health, material, intellectual, moral and spiritual welfare: this very broadcategory includes the adequate and undisturbed education of the child.

However, the mere fact that the mother is economically less secure than the father, or that shesuffers from ill-health or a disability is not usually reason enough to deny her custody becausemaintenance is the fathers responsibility irrespective of who holds custody. The mental andpsychological development of the minor should not be upset by a reversal of the existing statusquo: courts will take into account the likely impact of a change in guardians and the childs

reaction to this change.


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Added Date: 6 Oct 2007

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About the Author: Mohit Agrawal & Romit Agrawal

Students of Vth year and IV year from Aligarh Muslim University, Aligarh and Gujarat National LawUniversity, Gandhinagar.

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