Legal Issues in Child Custody (Child custody disputes)

When a couple seeks divorce for various reasons, if the child or children are minors, the legal right to keep and look after the child/ children is called Child Custody.

The mother and father both have an equal right to the custody of a child. Who gets the custody of the child, however is a question which the court decides upon. While the statutes are conflicting when it comes to personal laws as opposed to secular enactment in the form of The Guardian and Wards Act, 1890, the court of competent jurisdiction strives to strike a balance between the two, all the while holding the welfare of the child as the paramount importance. However, just because the custody of a minor has been awarded to one parent, it does not mean that the other parent cannot see or be in contact with the child. The courts in India are very strict to ensure that a child gets the affection of both the parents. The other parent gets visitation rights, the conditions of which are determined by the court.

The Indian Law, while keeping in mind the parents’ right to the custody of a child, holds the welfare of the child as the most important factor of consideration when deciding upon who gets the custody of a minor child.

What Are The Factors That Constitute “Welfare” Of A Child

Welfare of the child, broadly, includes the following factors:
- Safe-keeping of the child
- Ethical upbringing of the child
- Good education to be imparted
- Economic well-being of the guardian
- Spiritual / social / ethical / moral wellbeing
- Family background
- Family Support
- Child's wish

The child custody laws in India are evolving and now all of them have adopted the uniform practice of keeping the child’s best interest in mind.

First among the factors is the welfare of the child, which includes a safe environment for the upbringing of the child. The ethical background and mental condition of the applicant is important to be considered while giving custody of the minor child. A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the primary aspect of the welfare of the minors, which is of paramount importance, (V. Srinath Prasad vs. Nandamuri Jayakrishna, (2001) 4 SCC 71).

Even Orders pertaining to custody of children passed by consent can be varied by the court, if the welfare of the child demands deviation from the original order. (Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840).

On the other hand, if the child is at an age where they can understand the situation, their opinion is also considered by a Court while granting custody. This is governed by sub-section (3) of Section 17 of the Guardians and Wards Act, 1890, (Nil Ratan Kundu v. Abhijit Kundu, (2008)

Under the Hindu Minority and Guardianship Act, 1956 the custody of a child aged under five years should ordinarily be with the mother. The Indian courts have time after time taken view that the mother is always the best and the most suitable custodian of the child. The general rule followed by the Courts is that the custody of a boy or an spinster girl below the age of 18 years and above the age of 5 years shall be given to the father, as he is the natural guardian.

The Hon’ble Supreme Court and other courts in India have reiterated time and again that in the proceedings for custody of a minor, the welfare of the minor is the only consideration, irrespective of the claims of the parties to the custody.