The children are a valuable asset to the country. Both men and women have a significant role in a kid's development. Because of the two's mutual disagreements, a third party, usually the courts, should handle the question of child custody. As a result, India has no unified legislation governing child custody. “Personal laws control child custody, and marriage laws are generally followed, except for Hindus, who have statutory enactment. As in other personal laws, the controlling concept of the child's wellbeing is too ambiguous among Hindus. Courts can utilize general secular rule in India to appoint Guardians and other related matters.”
Except for maintenance and related difficulties, personal laws manage matrimonial disputes between estranged parents and their rights. Still, they overlook the most critical component of a failed relationship: the child born out of wedlock. Furthermore, none of the “statutes considers the fundamental and constitutional rights of children protected by Article 21.” Even the wellbeing of the kid is left to the Court's subjective judgment, to be judged on a case-by-case basis, as the Courts claimed parens patriae Jurisdiction. Even the non-custodial parent's visiting privileges are at the Court's discretion and are granted for a limited time without a holistic perspective of the child's development. Typically, visiting rights are infringed due to a lack of legal provisions.
TYPES OF CUSTODY
Usually, Court grants the following types of custody:
a) Physical Custody. “One parent has custody of the child with periodical interaction and visitation rights to the non-custodial parent.”
b) Joint Custody. “Both parents take care of the child turn by turn. The child's rotation among parents may vary from specific days, weeks, or months.”
c) Legal Custody. “Although the physical custody is with a single parent, both parents can take every critical decision for the child, like education, medical treatment, etc.”
FUNDAMENTAL RIGHT OF THE CHILD
Aside from their parents, the children have prolonged relationships with relatives and extended family members on both sides of the family. The symbolic relation is critical not only for the survival of society but also for the full development of children. “Children from broken marriages are frequently deprived of non-custodial parent relationships. Even the courts have failed to build a law on the children's rights under Article 21, which has been understood to cover comprehensive rights not mentioned in the constitution.”
In a larger sense, “the child's right under Article 21 of the Indian constitution includes the right to the love and affection of grandparents, other extended family members, and friends who play an essential part in the child's growth. Extended relationships help the youngster comprehend the nuances of relationships and life in general.”
STATUTORY POSITION IN INDIA
• “Guardians and Wards Act, 1890 (from now on, GWA)”: The GWA is a secular law that governs guardianship and custody of children in India, regardless of religion. It empowers District Courts to appoint guardianship for a minor's person or property. “The Act is a complete code that establishes the guardians' rights and obligations and remedies for their misconduct. Section 7 of the Act addresses the appointment of a guardian for a minor's person, property, or both. Section 17 deals with factors to be considered by the Court when appointing guardians, and for the welfare of the minor, Courts must consider the minor's age, gender, and religion; the character and capacity of the proposed guardian and the proposed guardian's relationship to the minor; the wishes, if any, of the deceased parents; and any existing or previous relationship of the proposed guardian with the minor's person or property, and it also says that the Court may.”
• “Hindu Marriage Act, 1955”: “Section 26 of the HMA authorizes courts to issue interim orders in any process under the Act involving the custody, maintenance, and education of young children by their wishes to cancel, suspend, or vary previously issued temporary orders.”
• “Islamic Law”: “Under Islamic Law, the father is the natural guardian, although custody remains with the mother until the son reaches the age of seven and the daughter reaches puberty. This Islamic legal system is one of the few that distinguishes between guardianship and custody and expressly recognises the mother's right to custody.”
• “Parsi and Christian Law”: “Section 49 of the Parsi Marriage and Divorce Act of 1936 and Section 41 of the Indian Divorce Act of 1869 allow courts to issue interim decisions for custody, maintenance, and education of minor children in any action governed by both Acts. The Guardianship of Parsi and Christian children is governed by the GWA.”
• “The Special Marriage Act, 1954”: “Section 38 authorizes the District Court to issue any order and make any custody conditions appear just and proper.”
• “Indian Divorce Act, 1869”: “According to sections 41-44, the Court may issue interim orders and make decree provisions affecting the custody, maintenance, and education of minor children in cases involving a marriage dispute between the parents of children on a case-by-case basis.”
As the statutory provisions show, the Court has been given considerable discretion in the custody and guardianship of the child, except Muslim Law, which makes a distinction.
In the case of “Ms Githa Hariharan and Another vs Reserve Bank of India and another”,; the Supreme Court held “in section 6 of the act, the word after need not necessarily mean after the lifetime; instead, it means in the absence of, i.e. to the father's absence from the care of the minor's property or person for any reason whatever.”
Thus, the Court further said that the “perspective mother's right to act as the guardian does not stand obliterated during the father's lifetime.”
In the case “Gaurav Nagpaly vs Sumedha Nagpal”,; The Supreme Court held “the child custody issue should be dealt with from a human angle and should not be confined to legal principles.”
Even in “Nil Ratan Kundu v. Abhijit Kundu,” the Court said that the Court is “neither bound by statutes nor by strict rules of evidence or procedure nor by precedents and the issue of child custody is required to be solved with a human touch. In selecting the proper guardian of a minor, the paramount consideration must be the welfare and well-being of the child.”
In the case, “Dr Amit Kumar vs Dr Sonilaand Others”, The Supreme Court held that “a decision to give custody to the father was a conscious decision taken by the parties at the relevant stage of the settlement before the grant of the decree of divorce.” The Court further said that “the father's second marriage could not be put against him, nor can the factum of the child of his second wife residing with him deprive him of the custody rights of his two children.” Instead, the Court observed against “the wife and concluded that her claim seemed motivated to avoid her share of expenses.”
In its report, “the Law Commission of India has stated that in November 2014, it issued a Consultation Paper on Adopting a Shared Parenting System in India. Most responses favour shared custody as both parents have valuable contributions to make in the lives of children of either gender.”
In “Ruchika Abbi & another v. State of National Capital Territory of Delhi &, Another’s," Supreme Court noticed that “by taking advantage of temporary custody of the child, none of the parents would influence the innocent mind of the child by tutoring and creating hatred against other for their interest-a fact as it may do more harm to the child in the long run.”
In the case of "Yashita Sahu vs The State of Rajasthan and Another,” the Supreme Court has recognised “the need for children and considered the principles of Shared Parenting in." The Court held that “if the child cannot be provided with one happy home with two parents, then let the child benefit from two comfortable homes with one parent each.” The Court further held that “Contact right could be denied only in extreme circumstances, and the non-custodial parent is also entitled to sufficient visitation rights for maintaining social, physical and psychological contact of a child with any of the Parents. Looking at the advancement of technology, Parents who are denied custody of a child have the right to talk to the child for 5 to 10 minutes daily.” The Court further explained, “the contact rights include contact by telephone, e-mail or, if available, between parties should be video calling.”
The custody decision must reflect the engagement of parents, extended family members, and friends in rearing. Joint and comprehensive custody should be supported in the child's best interests. There should be binding guidelines to refer child custody cases to the mediator. The mediator could encourage joint and extended custody and advise the estranged parents to think out of the box from the perspective of the child, society, and nation.
This article is written by Jyotsana Singh of Symbiosis Law School, Hyderabad.