Legal provisions pertaining to the custody of children need to be reformed to ensure gender justice.
CHILDREN often become the collateral damage when their parents decide to separate or end their marriage. The legal proceedings that follow are messy and the issue of custody of minors is even more complicated. The innocent mind of the child at most times cannot comprehend the situation and therefore, it falls upon the courts to decide what shall be in their best interest. Nonetheless, the child suffers an irreparable trauma of losing one of the parents, and is deprived of the love and care that both parents can provide together as a team of caregivers who brought the child into this world.
Hindu law is quite clear that the custody of a minor child below five years shall be with the mother.
The chief subject of this article is Section 6 of the Hindu Minority and Guardianship Act, which specifically outlines the right of guardianship, and is produced for reference below:
Natural guardians of a Hindu minor.—The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are—
(a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;
Hindu law is quite clear that the custody of a minor child below five years shall be with the mother. The said provision has been challenged on numerous occasions, but most of the times the courts have been bound by law to grant custody of the minor child to the mother, stating it to be in the ‘best interest of the child’, which has to be of prime consideration while deciding custody matters. These decisions are also laid on the understanding that the provision enshrined in section 6(a) of the 1956 Act has in fact been enacted keeping in mind the best interest of the minor child itself.
Will a child, whose custody has been given to the mother, even if only up to the age of five years, not be affected by the feelings of the mother towards her husband, who she has broken up with on bad terms?
“The parents together are a young child’s world. It is together that they groom him into his youth. It is together that they ensure the overall development of his personality in its myriad facets.
But marriage, like life, sometimes takes an unpleasant turn, where the spouses could turn into an estranged couple.
It is in this situation that the Court, in the exercise of its parens patriae jurisdiction, called upon to perform the onerous task of keeping the young child’s world, as much together as can be.”
The high court reiterated the views of the Supreme Court from Nil Ratan Kundu versus Abhijit Kundu (2008),wherein it was held that while dealing with custody cases, courts are “neither bound by statutes nor by strict rules of evidence or procedure nor by precedents” and that what is of prime importance is the welfare of the child. Having considered the same, the high court added:
“But, the general rule about custody of a child, below the age of five years, is not to be given a go-by. If the mother is to be denied custody of a child, below five years, something exceptional derogating from the child’s welfare is to be shown.”
Finally, considering the capability and past events of the matrimonial relationship of the parents, the court granted the custody of the minor child to his mother, alongside an order that suitable arrangements need to be made to provide the child with his father’s company as well because the custody being with the mother alone cannot be in the best interest of the child’s welfare.
There are catena of judgements reflecting similar views of the judiciary when it comes to custody battles around minors. In Roxann Sharma versus Arun Sharma (2015), while quashing an order of Bombay High Court wherein the custody of a two year child was granted to the father because the mother could not establish her suitability to be granted interim custody of the minor child, the Supreme Court observed:
“There can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child’s welfare which is the focal point for consideration. Parliament rightly thinks the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.”
It further added that the onus to prove that it is not in the best interest of the child to be placed in the custody of the mother rests with father as per the legislative provision that was “virtually nullifie[d]” by the High Court order.
Let us say that this is good law and it is in fact in the best interest of a minor child who cannot make such a crucial decision for themself at such a tender age. However, three issues arise that stay unanswered by the legislative provision of section 6(a). I will place them as open ended questions here.
Firstly, will a child, whose custody has been given to the mother, even if only up to the age of five years, not be affected by the feelings of the mother towards her husband, who she has broken up with on bad terms (assuming that is the case in majority of such circumstances)? Such a child would be naturally conditioned or even mentally poisoned to develop a dislike for the father, who shall never be able to repair that damage to his relationship with the child, notwithstanding limited visitation rights. Once the child has reached the age of five years during pendency of the suit for final custody, the child’s naturally developed affection for the mother shall be taken into consideration straight away.
Where a mother purposely and wilfully leaves her matrimonial home and abandons the child, leaving the minor in the matrimonial home with the father, the father can obtain official custody from court, but the process is tedious and painfully slow.
Another lacuna of law is highlighted in a situation where a mother purposely and wilfully leaves her matrimonial home and abandons the child, leaving the minor in the matrimonial home with the father. Normally, a father can obtain official custody from court, but the process is tedious and painfully slow. It shall become an absolute nightmare when the mother subsequently brings in the right bestowed upon her through section 6(a), only to harass her husband, using the law as a weapon and the child as a pawn.
Such a situation arose in Pinki Agarwal versus State of Punjab and Ors. (2021) at the Punjab and Haryana High Court, where the mother, despite lesser income and means than the father to support their minor child, was granted the custody of the child, who had been happily living with his father and grandparents before the mother raised the issue of custody.
Courts are guardians of law and have held onmanyoccasions that a habeas corpus writ petition against a mother is not maintainable as the mother is the natural guardian of a child below five years of age, and hence the custody cannot be said to be illegal. Therefore, in Pinki Aggarwal the child was ordered to be placed in the custody of the mother keeping the legislative provision as the basis of the decision. An appeal against the high court’s decision was referred to the Supreme Court, which restored the interim custody back to the father, but could not do so with support of the legislative provision of section 6; instead, it adopted the garb of “best interest of the minor child”. This was neither delivered as a speaking order to set a precedent that could aid the fathers in a similar situation, nor could the Supreme Court hold the order of the high court to be bad law because it was indeed not so, based as it was on stringent provisions and after due application of mind.
Thirdly, the law is absolutely non-existent for non-resident Indians. Citizens of India who are residing abroad and have even obtained Permanent Residency of a foreign country would still be governed by Indian law in case one of the parents brings a child back to India solely to remove them from the custody of their other parent. In absence of a law relating to ‘parental child abduction’ in the country, the issue is treated as a custodial issue. If a mother brings back a child to India despite a custody order of a foreign court in favour of the father, the law is well-settled by the Supreme Court that Indian courts are not bound by such an order, but can treat it as a considerable factor while deciding the issue of custody or guardianship. Also, the expression “ordinarily resides” in the Guardian and Wards Act must be determined by the ‘intention’ of parties, and not merely on the basis of residence abroad or foreign nationality.
Most importantly, the principle of ‘comity of courts’ in child custody cases has generally held that foreign judgments are unconditionally conclusive. However, the welfare of the minor child being paramount, the Supreme Court has said that Indian courts are duty bound to examine the matter “taking the foreign Judgement only as an input for final consideration”.
Why do some recent judgments offer hope of change?
A ray of hope shines in Yashita Sahu versus State of Rajasthan (2020), wherein a division bench of Justices Deepak Gupta and Aniruddha Bose of the Supreme Court ordered in favour of the father; that his two and a half year old daughter, who was an American citizen by birth and was abducted by her mother and brought back to India despite American court orders prohibiting her to do so, is to be taken back to the U.S.. The case before the Supreme Court was an appeal to an order passed by the Rajasthan High Court wherein the writ of habeas corpus was instituted by the father, and the mother was directed to take the child back to the U.S. herself.
It was noted by the Supreme Court that:
“It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. This has been done in Elizabeth Dinshaw vs. Arvand M. Dinshaw & Ors., Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr. and Lahari Sakhamuri vs. Sobhan Kodali among others. In all these cases the writ petitions were entertained. Therefore, we reject the contention of the appellant wife that the writ petition before the High Court of Rajasthan was not maintainable.”
The judgement pointed out the dilemma of deciding such custody issues in detail, and fairly weighed the factors involved. Having considered the circumstances, the court held the following:
“There are various factors to be taken into consideration while deciding what is best in the interest of the child. No hard and fast rules can be laid down and each case has to be decided on its own merits. We are also not oblivious of the fact that when two parents are at war with each other it is impossible to provide a completely peaceful environment to the child. The court has to decide what is in the best interest of the child after weighing all the pros and cons of both the respective parents who claim custody of the child.”
The court continued: “Obviously, any such order of custody cannot give a perfect environment to the child because that perfect environment would only be available if both the parents put the interest of the child above their own differences. Even if parents separate, they may reach an arrangement where the child can live in an environment which is reasonably conducive to her/his development. As far as the present case is concerned other than the age of the child nothing is in favour of the mother. She herself approached the jurisdictional court in Norfolk. She entered into an agreement on the basis of which a consent order was passed. She has violated that order with impunity and come back to India and, this is a factor which we have to hold against her.”
Thereafter, the court mindfully delivered the orders in two parts – one in which the wife is willing to go back to the U.S., and the other where the wife is not willing to move back to the U.S. The conclusive opinion of the court in regard to the welfare of the child was that since the child is a U.S. citizen and facilities for her care and education would be better over there, it would be in her best interest to be taken back to the U.S.
If a mother brings back a child to India despite a custody order of a foreign court in favour of the father, the law is well-settled by the Supreme Court that Indian courts are not bound by such an order, but can treat it as a considerable factor while deciding the issue of custody or guardianship.
Another revolutionary judgement came from the Punjab and Haryana High Court through the single-judge bench of Justice Sant ParkashinPriyanka Rani versus State of Punjab and Ors.,decided in January this year. In this case, a writ petition of habeas corpus was decided in favour of the father whose custody of his minor daughter was held “not illegal”. One cannot overlook the fact that one chief factor that worked to the respondent father’s advantage was that the child had crossed the age of five years and was into her sixth year. One cannot certainly say (but can strongly conclude from precedents) that had the same child in the same circumstances been less than five years of age, section 6(a) could have come to the rescue of the mother’s claim for custody.
However, decisions such as these are hard to come by and await one at the end of a dark tunnel that one has to journey through on the slow-moving wagon of litigation that drains one mentally as well as financially. One must also not forget that in a country with a largely indigent population like ours, not everyone has the privilege of even fighting a legal battle for their children. Therefore, a reformatory change in legal provisions pertaining to the custody of children to protect fathers from suffering prejudice is much needed. One wonders how far we are from even the realisation of the injustice suffered by such fathers.