Child Custody & GuardianshipPrepared by H. S. Mulia

Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. During divorce or marriage annulment proceedings, the issue of child custody often becomes a matter for the court to determine. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent.

The Dharmashastras did not deal with the law of guardianship. During the British regime the law of guardianship was developed by the courts. It came to be established that the father is the natural guardian of the children and after his death, mother is the natural guardian of the children and none else can be the natural guardian of minor children.

Child custody is being awarded to the parent keeping in

view the best interest of the child.

For the sake of brevity, this document is formed into four

chapters.

Chapter -1 (child custody and Guardianship in Hindu law)

Chapter -2 (child custody and Guardianship in Muslim

Law)

Chapter -3 (child custody and guardianship in Christian)

Chapter -4 (child custody and guardianship in Parsi)

Chapter - 1 (Child Custody and Guardianship in Hindu law)

The Hindu law of guardianship has been codified

and reformed by the Hindu Minority and Guardianship

Act,1956. With the help of the provisions of the act, it will

be convenient to discuss the subject matter under

suitable sub-headings.

1. Guardianship of person of minors

2. Guardianship of the property of minors.

3. De-facto guardians.

4. Guardians by affinity (guardian of a minor widow – Pre

1956 Act).

1.1 Guardianship of person of minorsUnder the Hindu Minority and Guardianship Act,

1956, minor means a person who has not completed

the age of eighteen years. A minor is considered to

be a person who is physically and intellectually

imperfect and immature and hence need someone’s

protection.

Guardians may be of the following 3 types:1. Natural guardians

2. Testamentary guardians

3. Guardians appointed or declared by the court.

Other than the types mentioned, the two other

types of guardians, existing under Hindu Law are

de-facto guardians and guardians by affinity.

Natural guardians are of three types

A - Father- a father is the natural guardian of his minor legitimate children,

sons and daughters. A father cannot be deprived of the natural guardianship

of his minor children unless he has been found unfit. The position of adopted

children is at par with that of born children. In case the father is incapable,

or fails or refuses to perform the functions the mother can be the guardian.

B - Mother – the mother is the guardian of the minor illegitimate children

even if the father is alive. Mother’s right to guardianship stays even if she

has converted her religion. The position also remains the same even if the

child is an adopted child and not a natural born child.

C - Husband is the guardian of his minor wife.

1.2 Guardianship Of Minors Property

The natural guardian of the person of a child is also the

guardian of the property of the concerned child. But a

natural guardian is not the guardian of the minor’s

undivided interest in the joint family property. Neither the

natural guardian nor the court can appoint a guardian of

the minor’s undivided interest in the joint property.

The father can appoint a testamentary guardian on his own will. If the father does not appoint , the mother’s appointee will resume the responsibility of the guardian. Guardians appointed by the court are the guardians appointed by the virtue of the courts empowerment. Under the Guardians and Wards Act,1980, the jurisdiction is conferred on the district court. The district court on its own discretion appoints any person whenever it thinks it to be better for the welfare of the child.

1.3 De-Facto GuardianA de-facto guardian is a person who takes continuous interest in

the welfare of the minor’s person or in the management and

administration of his property without any authority of law.

Hindu jurisprudence has all along recognized the principle that if

liability is incurred by one on behalf of another in a case where it

is justified, then the person, on whose behalf the liability is

incurred or, at least, his property, is liable, notwithstanding the

fact that no authorization was made for incurring the liability.

1.4 Guardianship by affinityIn pre-1956 Hindu law there existed a guardian called

guardian by affinity. The guardian by affinity is the guardian of a minor widow. Mayne said that "the husband's relation, if there exists any, within the degree of sapinda, are the guardians of a minor widow in preference to her father and his relations. 'The judicial. pronouncements have also been to the same effect. The guardianship by affinity was taken to its logical end by the High Court in Paras Ram v. State In this case the father-in-law of a minor widow forcibly took away the widow from her mother's house and married her for money to an unsuitable person against her wishes. The question before the court was whether the father-in-law was guilty of removing the girl forcibly. The Allahabad High Court held that he was not, since he was the lawful guardian of the widow.

But as per the provisions contained under the Prohibition of Child Marriage Act, above referred provision may not be apply in the present days.

Chapter - 2 (Child custody and Guardianship in

Muslim Law) As per my consideration, Muslim law is

of utmost importance when it comes to gauging the actual representation of women when asking for the custody and guardianship of children. As for that matter the chapter has been further divided into suitable sub-headings.

NatureThe term guardianship connotes guardianship of a minor i.e. a person who has not attained puberty.[13] Puberty is assumed to have been attained at age 15 years in general. However, as far as guardianship is concerned, a Muslim will be governed by the Indian Majority Act of 1875 which provides that the age of majority is 18 years and 21 years if the minor has been appointed a guardian by the court. A guardian will be appointed by the court under the Guardian and Wards Act of 1890 for the welfare of the minor.

Kinds Of Guardianship

Muslim law recognizes three types of guardianship

(i) guardianship in marriage (Jabar)

(ii) guardianship of persons of the minor for custody (Hizanat);

(iii) guardianship of property which is divided into three sub groups:

a. de jure guardianship;

b. de facto guardianship;

c. Certified guardianship.

Guardianship of the Person of the Minor for Custody

Under Sunni Law the mother is entitled to the custody of a male child up to 7 years and a female child till she attains puberty. Under Shia law she has custody of male child till the age of 2 years and female child till the age of 7 years; She is the de facto guardian; Under Sunni law failing the mother the custody of a boy up to 7 year and girl up to puberty goes to the following female relatives in order:-

(i) Mother’s mother how highsoever;

(ii) Father’s mother how highsoever;

(iii) Full sister;

(iv) Uterine sister;

(v) Consanguine sister;

(vi) Full sister’s daughter

(vii) Uterine sister’s daughter;

(viii) Consanguine sister’s daughter;

(ix) Maternal aunt in like order as sisters;

(x) Paternal aunt in like order as sisters.

In default of mother and female relatives, the custody goes to the following:(i) Father;(ii) Paternal grandfather (nearest)(iii) Full brother;(iv) Consanguine brother;(v) Full brother’s son(vi) Consanguine brother’s son;(vii) Full brother of the father;(viii) Consanguine brother of the father;(ix) Son of father’s full brother;(x) Son of father’s consanguine brother

Under Shia law the custody goes to the mother, failing her to the father and failing him to the father’s father.

Under Sunni law the father is entitled to custody of the boy over 7 and an unmarried girl who has attained puberty and in Shia law to the custody of a male child over two year and unmarried girl of 7 years. The custody of an illegitimate child goes to the mother.

Rights Of Hizanat

In the case of Imambandi v.Mustadi[17] the property in the suit belonged to Ismail Ali Khan (Sunni). It was alleged by the plaintiff that on his death he left three widows one of whom, Zohra, acting on behalf of herself and her two minor children purchased the share in the suit for the possession of which they brought action. The reliefs sought were

(i) Declaration of the title and status of plaintiff’s vendors; (ii) A decree for possession of shares covered by the sale deed;

The defendants contended that Zohra was not a married wife and that the children were not legitimate and that the shares did not pass under the sale. The Privy Council held that Zohar and her children were entitled to the shares. The important question was whether the plaintiffs acquired any title to the infant’s share under the sale by the mother. The defendants contended that the mother had no power to convey her children’s interest to the plaintiffs. It was held that although the mother is entitled to the custody of the person of the minor, she is not the natural guardian and the father alone or if he is dead his executor (under Sunni Law) is the legal guardian. The mother has not power to deal with the minor child’s property. She may incur responsibilities but can impose no obligation on the infant. This rule is subject to certain exceptions provided for the protection of a minor child if there is no de jure guardian i.e. the court may appoint the mother as a guardian of the property. It was further held that if the mother pledges (mortgages) the properties of the minor child it is unlawful unless she is the executrix (of the father) or is authorized by the guardian of the minor or by the judge. Then it is lawful and the right of possession and user is established in the Murtahil (pledgee/ mortagagee) without the power of sale.

Termination Of Hizanat

Disqualification of the Hizanat can be categorized into 5 heads:-

General disqualifications – a minor cannot act as a guardian of any minor other than his own wife or child, a non Muslim parent etc.

(i) Disqualification effecting females – the mother or female’s relatives can be disqualified on the following counts-

a. She leads an immoral life –i. Adultery ;ii. Becomes a prostitute;iii. Has committed criminal offence;iv. Is a professional singer or mourner

b. She neglects the child;c. She marries a person not related to the child within prohibited degrees (Rahima Khatoon v. Saburjanesa);d. During subsistence of marriage she goes and resides at a place at a distance from the father’s place;

(ii) Disqualification affecting males - No male relative, outside of prohibited degrees, is allowed to have custody of an unmarried girl. (iii) Disqualification affecting parents –

§ Mother gives up custody of boys after 7 and girls after puberty (Sunni Law) and boys after 2 and girls after 7 (Shia law). The mother does not lose her right to custody by divorcing the father.

§ The father is a natural guardian but will be disqualified by the court for –

o Cruelty to wife or children;o Felony;o Adultery (though not if the woman is not brought into contact with the child);o If he is unfit in character and conduct;o If he is unfit as regards external circumstances;o If he waives his right of custody;o If he enters into agreement to the contraryo If he goes out of the jurisdiction of the court or if intends to go abroad; (iv) Disqualification affecting husband – husband is not entitled to custody of minor wife unless she attains puberty or such age that would permit consummation of marriage. In this circumstance, the mother is the guardian. However, minority of the husband does not deprive him of his right to guardianship.

Chapter - 3 (Child custody and Guardianship in Christian Law)

Christian law per se does not have any provision for custody but the issues are well solved by the Indian Divorce Act which is applicable to all of the religions of the country. The Indian Divorce Act, 1869 contains provisions relating to custody of children. Section 41 of the said Act provides with the powers to make orders as to custody of children in suit for separation. -In any suit 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 deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the said Court.

In the case of 'Rosy 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 considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. It is unnecessary to refer to 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 the Court, if the welfare of the wards demands variation. ‘The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time to time, all such orders and provision, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders 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 decree absolute or its decree (as the case may be), make such interim orders, and may make such provision in the decree absolute or decree and in any such suit instituted in a District Court, the Court 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 may be) 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, direct proceedings 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:-

Infant's welfare paramount. In any proceedings before any Court, concerning the custody or upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the application of the income thereof, the Court must regard the welfare of the infant as the first and paramount consideration, and must not take into consideration, whether from any other point of view, the claim of the father, or any right at common law possessed by the father in respect of such custody, upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. This provision applies whether 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 the foreign Court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the Courts of any other country."'

In the case of 'Rosy Jacob v. Jacob A. Chakrammakkal', this Court has observed:

"Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children 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 the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and who in addition because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for 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 modern changed social conditions, yielded to the considerations of their welfare 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 in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents, over them.

Chapter - 4 (Child custody and Guardianship in Parsi Law)

The issue of custody is dealt with by the Guardians and Wards Act of 1890, under which it is a well-established principle that the welfare of the child is paramount - i.e., the most important thing considered by the Guardian Court when deciding custody.

No matter what customs or personal law rules the parents' community or sect follows regarding custody, any parent who wants custody and does not presently have custody has to seek custody from the Guardian Court. In other words, there is never any automatic transfer of a child's custody 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). The welfare of younger children is generally regarded as being in the mother's custody;

# the character and capacity of the proposed guardian: courts usually reject baseless allegations against 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 minor's property: courts do not look kindly on guardians seeking custody just in order to have control over the minor's property. But if, for example, the minor's property is shared with the mother and she is otherwise a suitable guardian, the court will regard the property relationship as an additional factor in the mother's favour.

# the minor's preference if she/he is old enough to form an intelligent preference, usually accepted as about 9 years old.# whether siblings would be divided: courts prefer to keep children united and award custody of both to either the mother OR the father.# whether either/both parents have remarried and there are step-children: Although the mother's remarriage to someone who is not the children's close blood-relative often means the court will not grant her custody, this rule is not strictly followed. Although the father's remarriage usually denies him custody, sometimes the courts agree to grant him custody especially when the children's step-mother cannot or will not have her own children.# whether the parents live far apart: courts sometimes do not give the mother custody because she lives very far away from the father who is the ‘natural' guardian. But in 1994 an Uzbek woman living in Uzbekistan was given custody; the judge said modern transport had shortened distances and meant that the father could depart from his home in the morning and return by evening.

# the child's comfort, health, material, intellectual, moral and spiritual welfare: this very broad category 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 she suffers from ill-health or a disability is not usually reason enough to deny her custody because maintenance is the father's responsibility irrespective of who holds custody. The mental and psychological development of the minor should not be upset by a reversal of the existing status quo: courts will take into account the likely impact of a change in guardians