COURT TRENDS IN CHILD CUSTODY
N. Sivaraman1
INTRODUCTION
“A child cannot be tossed like a shuttle cock between the parents”.2
-Justice R.M Lodha and Rohinton Nariman
These words were said by Justice R.M Lodha and Rohinton Nariman in an appeal against an
order of the Madras high court in a case involving dispute over the custody of a four old
child.3 The short phrase shows an analysis of more than a hundred years of judicial reasoning
and legislative efforts directed towards promoting the welfare of children in deciding custody
of children.
With divorce rates touching a new high4, the position of the child becomes one of concern.
The term custody in the material sense has been used to refer to the care and keeping of a
thing.5 It has been defined to include legal custody and physical custody.6 Legal custody
refers to custody under the orders of the court or under the personal law to which the children
are subject while physical custody or de facto custody refers to subjecting the child to the
physical care and control of a person.7
While the father has been appointed as the natural guardian of the child by the Hindu
minority and guardianship Act it has been pointed out by the courts in more than one
occasion that guardianship and custody are two different terms not to be confused with.
1
2
3
4
5
6
7
2nd Year BA LLB Student, NALSAR University of Law, Hyderabad
J VENKATESAN, Supreme Court: The Child Cannot Be Tossed Like a Shuttle Cock Between The Parents,
THE HINDU January 30,2009.
Ibid.
APOORVA DUTT, How and why the number of couples getting divorced has increased sharply, (January 4,
2015) available at http://www.hindustantimes.com/sex-and-relationships/how-and-why-number-of-youngindian-couples-getting-divorced-has-risen-sharply/story-mEuaEoviW40d6slLZbGu6J.html (Last visited on
September 7, 2016).
BLACK’S LAW DICTIONARY, 537 (4th ed., 1968).
SaradaNayar v. VayankaraAmma and ors, AIR 1957 Ker 158.
Ibid.
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While a guardian is a person who is supposed to take care of the property of the minor the
custodian is supposed to take care of the person of the minor.8
Custody of a child has a unique feature in that it is not the right of the petitioning parties but
the welfare of the person whose custody the parties they try to secure that is taken into
consideration.9 The problem chiefly arises in cases of divorce or judicial separation between
the parties to the marriage, though there are exceptions to it. Speaking on child custody in
Roxann Sharma v. Arun Sharma, the apex court once again agreed to this proposition of the
welfare of the minor should be considered over the rights of the parties presenting the
petition.10
This view has prevailed not just in cases decided based on the Hindu Minority and
Guardianship Act but also in those decided according to other legislations operating on the
subject such as the Indian divorce Act and guardians and wards act.11 The guardians and
wards act, applying to people of all religion, class, and creed places gives utmost importance
to the welfare of the minor in deciding custody. Thus, it becomes necessary to understand
what it would mean by welfare of the minor.
What would draw the attention of an observer are the presumptions made by the court in
deciding what would be in the best interest of the child. The courts have taken a wise step in
stating in clear terms that welfare wouldn’t mean just benefits in monetary terms but also
non-monetary benefits material to the welfare of the child, in his development and in his
realizing his talent.12 At the same time, they have included indefinable concepts such as
ethical and spiritual welfare in an already abstract concept. 13 While this has been said by the
court in several cases, the courts have not chosen to ignore the monetary standing of the
parents in deciding a child’s welfare.14
While, Section 6 of the Hindu Minority and Guardianship Act mentions in express terms that
a minor’s natural guardian would be his father, the courts have asserted that any decision on
8
9
10
11
12
13
14
Karuppannan v. Sudhamathi, (1993) IIML J293.
Ibid.
Roxann Sharmav. Arun Sharma, AIR 2015 SC 2232.
Rozi Jacob v. Jacob A. Chakramakkal, [1973]3SCR918.
Vinod Kumar v.Arunadevi, Criminal Revision Petition Nos. 34 & 43 of 2015.
KirtikumarMaheshankar Joshi v. PradipkumarKarunashankerJoshi , 1992 (3) SCC 573; Radha
alias Parimala v N.Rangappa, AIR 2004 Kant 299.
Supra note 10.
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custody would be based on the minor’s welfare only. 15 The Judges have drawn their support
from Section 31 of the Hindu minority and guardianship Act for their stand.
Further, Some Authors have also stretched the emphasis on welfare of the minor to the point
where they have stated that the parent to whom the custody is not granted is allowed to visit
the child not owing to his rights over the child but due to the child’s welfare demanding such
a visit by categorically stating that the welfare of the child meant he should have knowledge
and affection from both the parents.16
Through the project, the author will examine various decisions of the court in an attempt to
find out what the courts mean by “welfare of the child” as the criterion for deciding custody
of the child, how the concept has been looked upon by the court at various points of time. In
this attempt, various fallacies of the courts have also been pointed out and an attempt has
been made to suggest a normative standard based on practices in other common law
countries, most importantly, the United States of America.
The statutes have not specified the types of custody a court may award. However, drawing
from English cases, custody may be joint physical and/or legal custody, separate physical
and/or legal custody with visiting rights for the other parent.17 Aspects of joint custody are
not discussed in the paper owing to the rareness of its usage in India.18
15
16
17
18
Supra note 13; Parimala v. Rangappa, AIR 2004 Kant 299.
Vinod Gulshandev Chopra v. Vimi Vinod Chopra, WRIT PETITION NO. 10366 OF 2011
THOMAS J. REIDY, RICHARD M. SILVER AND ALAN CARLSON, Child Custody Decisions: A Survey of
Judges, Family Law Quarterly, Vol. 23, No. 1 (Spring 1989), pp. 75-87
D. MARINNE BLAIR AND MERLE H. WEINER, Resolving Parental Custody Disputes—A Comparative
Exploration, Family Law Quarterly, Vol. 39, No. 2, Symposium on Comparative Custody Law (Summer
2005),
pp. 247-266
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CUSTODY AND GUARDIANSHIP
The word guardian under Hindu minority and guardianship Act, 1956 refers to a person who
is entrusted with the care of the minor’s property or his person or both property and person.19
Such a person may be the natural guardian who is the father followed by the mother of the
person or any person other than the natural guardian of the child appointed for the purpose by
the court.20 A guardian may be appointed by the court to a minor even when the natural
guardian of the minor exists if it be satisfied that such a measure is needed in the interest of
the minor.21
The word custody has been defined in the black’s law dictionary as the immediate keeping,
guarding, care, watch, inspection, preservation, or security of a thing being in the immediate
personal care of the person who is its custodian.22 The definition is relevant in knowing the
nature of the term custody. Thus, custody of a minor would refer to the keeping of the minor
and providing immediate personal care of the minor.
On the other hand, the word guardianship as such is of wider import than the word custody, a
more comprehensive and valuable right than custody.
23
Guardianship refers to having rights
and duties regarding the with respect to care and control minor’s person or property.24 The
word care(which is the responsibility of a guardian) is used to denote looking after in a wider
sense than custody which is just physical keeping of the minor.25 In other words, while
custody can exist only over the physical person of the minor, guardianship can extend to both
his physical possession and control over his property.26
In both custody and guardianship, the court is bound to take into consideration the welfare of
the minor. A custodian may be considered to perform the functions of a limited
guardian27involved in taking care of the person of the minor unlike a general guardian who is
responsible for the person and property of the minor.
19
20
21
22
23
24
25
26
27
MahendraModi v. GobardhanLal, AIR2006Jhar124.
D. Rajaiah v. Dhanapal and anr, AIR 1986 Mad 99.
Supra, note 11.
Supra, note 5, Pg. 537.
J Velan v. G MuthuAndOrs (1990) 2 MLJ 417.
ASHA BAJPAI, Custody and Guardianship of Children in India, Family Law Quarterly, Vol. 39, No. 2,
Symposium on Comparative Custody Law (Summer 2005), pp. 441-457 American Bar Association.
Ibid.
Ibid.
Supra note 10.
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MINOR’S WELFARE AND NOT PARENTAL RIGHTS
The issue of child custody has rocked the legal world for more than five centuries. Early
Roman law wanted the custody of children to be granted to the father as it considered the
father to have absolute rights over the child.
28
This view of custody as right of the parent
continued in England till it was broken in 1839 where the ‘Tender Years Doctrine’ asked for
custody of children to be granted to the mother till the child attained an age of seven years, a
move taken for the welfare of the minor.29
Indian courts have time and again stated that it is the welfare of the child that would be taken
into consideration when deciding on the custody of the child. It was held around a century
back in Annie Beasent v. Narayanaiah, that the welfare of the child would be the prime
consideration of the court in deciding the custody of the child. 30
Such a view has evolved over years in the Indian scenario. For instance, in D. Rajaiah v.
Dhanapal and anr, the apex court spoke of the rights of parents over the custody of a minor
stating that the natural parents of the minor have the first right for custody of the minor and
that moving the children away from the parents will result in depriving the parents of their
right to custody and guardianship of the minor. 31 The exception to the norm was situations
where the welfare of the minor would be jeopardized by granting custody to the natural
guardian.
Over a series of judgments the concept of parental right of custody has finally taken a
backseat. For instance, it was held in Mohan Kumar Rayana v. Komal Mohan Rayana that
the right of the parent will be considered only in light of the welfare of the minor. 32 This
stance was further modified in Rozy Jacob v. Jacob A Chakramakal to state that custody
shall be granted only on the basis of welfare of the minor, thereby increasing the importance
to be given to the welfare of the minor in deciding custody. 33
28
29
30
31
32
33
JOAN B. KELLY, The Determination of Child Custody, The Future of Children, Vol. 4, No. 1, Children and
Divorce (spring, 1994), pp. 121-142 Published by: Princeton University.
Ibid.
Annie Beasent v. Narayanaiah,AIR 1914 PC 41.
Supra, note 20.
Mohan Kumar Rayana v. Komal Mohan Rayana, 2009(3) Bom CR308.
Supra note11.
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Welfare of the minor is to be judged not solely on the basis of the affection shown by the
parents.34 Where the parents are equally affectionate towards the child and have equal
resources for the maintenance of the child, the preference is given to the mother.
The father, to gain the custody of the child has to show that he can provide not equally good
custody but a better custody in promoting the welfare of the child35, where better care would
not just be measured on tangible grounds such as income but also on intangible grounds such
as ethical and moral development. Further, what is better for the welfare of the minor may not
always be an objective analysis of the facts but may also rest on preconceived notions of the
courts.
PRECONCEIVED NOTIONS
Certain preconceived notions are blatantly visible when it comes to allotting custody for
minors. For instance, custody of minor children below the age of five years is given to the
mother by the statute. Besides, the courts have also considered the mother to be the best
custodian for the minor till the minor attains the age of five years. 36 It is submitted that such
views are deeply influenced by the tender year’s doctrine of the west, which advocates for
mothers having the custody of minors up to the age of seven years, considering her to be the
most suitable person to bring up tender children.
Though the custody has been recommended by the statute itself, it is a rebuttable presumption
and the custody can be allotted to a person other than the mother if it can be shown that the
mother is not fit to care of the child. 37
The next preconceived notion held by the court is that of the mother being the most suited to
hold custody of girl children38, unless it is proved that the mother is unfit to take care of the
child.39
34
35
36
37
38
39
Supra note 32; also refer to Karuppannan v.Sudhamathi, II (1993) DMC 457.
R. Kasthuri v. R. Raveendran, AIR 2003 Mad 302.
K.S. Mohan v. Sandhya Mohan, AIR 1993 Mad 59.
Ibid.
DR. PARAS DIWAN, FAMILY LAW, Pg. 256 (Allahabad law agency, 10thed 2013).
Vinod Kumar v. Arunadevi, Criminal Revision Petition Nos. 34 & 43 of 2015.
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The father is considered to be a better custodian for older boys.40 These assumptions Act as
the starting points for the courts to begin their investigations into the case. Further, these
assumptions also allow the court to decide the custody of the minor without taking into
consideration the desire of the minor, by using its powers under Section 26 of the Hindu
minority and guardianship act.41
The cultural system’s (and more so, the religion’s influence) of giving importance to the
mother and looking at her care as superior to that of any other person is one of the chief
reasons for choosing to give the custody of children to the mother. In the American context,
such decisions were an impact of changing roles of members of the family owing to fathers
seeking work away from the vicinity of their homes.42
Where religion and the cultural system cannot be regarded as being free of politics and play
of power43, the decision of courts to decide welfare of the minor through pre-conceived
notions might surprise people who are alien to our legal system. Where law does not possess
the instruments to decide on complex issues, it should borrow from other disciplines, at the
same time maintaining its own normativity and evaluation of the knowledge so received.44
Such practices have already come into place in countries such as the United States where
professional psychologists are called by the court to give their opinion while deciding child
custody.45 Nevertheless, the efficiency of these practices has also been questioned, stating
that ultimately the courts may selectively choose the information they have to rely on. In
other words, the element of subjectivity and pre-conceived notions cannot be removed.46
To this end, some scholars of the United States have called for an independent family impact
analysis to ascertain what would be best for the welfare of the child47, advocating for fixed
guidelines based on which custody of a child would be granted. Major suggestions include
40
41
42
43
44
45
46
47
Paras Diwan, Supra note 37, Pg. 256.
Ibid; also refer to Re Kamal rudra, ILR (1949) 2 CAL 374.
Supra note 27.
Afsaar Bano, Indian Woman, The Changing Face, pg26(Kilaso books 2003).
Tubener Gunther, Gunther Tubener Frankfurt Law and Social Theory: Three problems, available at
https://www.jura.uni-frankfurt.de/50414777/Sozialtheorie_RechtENG.pdf (Last visited on September 10,
2016).
Supra note 17.
Supra note 17.
JOAN M. DRUCKMAN AND CLIFTON A. RHODES, Family Impact Analysis: Application to Child Custody
Determination, The Family Coordinator, Vol. 26, No. 4, The Family and the Law (Oct., 1977), pp. 451-458.
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working out theoretical family models and evaluating alternative options to find out which
decision would benefit the child the most.48
The English courts initially erred in their decision that custody of a minor should be with the
parent irrespective of the wishes of the minor, even if the minor be in the custody of a person
with the means, desire and affection to take care of him.49 Only later was a mature stand
taken that the minor’s desire should be given importance proportional to his age.50 Today,
this standard has become the norm.
This view of considering desire of the child has garnered support from the Indian courts
which linked the minor’s desire to his welfare, stating that it would be central to the welfare
of the minor to let him choose and change his guardian.51 By linking the minor’s preference
into his welfare, the court tactfully kept out of the need to consider the same as a separate
condition to be held in equal footing with the court’s understanding of the “welfare of the
minor” in deciding his custody. The court further exempted itself of its responsibility of
examining the minor by stating that an order may be passed without asking the minor of his
preference, by judging what would be in his best interests after going through the facts and
circumstances of the case, thereby contradicting itself.52
Referring to the guardians and wards Act it was held by the court in Satyanarayana and Ors
v. Bihari Lal And Ors, that the custody of the minor is to be based on the minor’s welfare
and that the minor’s wish is of utmost importance for his welfare.53 Thus, where a minor is of
the age of discretion wants to change his guardian or the person who has his custody, the
same should be given effect to in his welfare. However, one has to notice the requirement of
the court that the minor should have attained the age of discretion to exercise such an option.
For this purpose, some courts have considered the age of discretion to be sixteen years for
boys and fourteen for girls54, though it is no hard and fast rule.
An analysis of various legislations may find that the assumption of minors being incompetent
is not localized to the question of custody. For instance, the Indian contract law has evolved
48
49
50
51
52
53
54
Ibid.
Stapleton v.Poynter (Ky.), 53 L. R. A. 784.
Hewer v Barayant (1969) 3 All ER 578.
Nil RatanKundu and anr.v. AbhijitKundu, 2008(9) SCC413.
Ibid.
RLW2003 (1) Raj406.
Pollard v Rouse, ILR (1890) 12 All 213.
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on the lines that a minor is incapable of understanding the nature of his actions.55 It considers
a minor to be immature.56 Hence the courts acting through law try to protect the interests of
the minor by curbing his right to enter into contracts.57 As was said by Anthony Kronman the
contract law tries to protect a minor against his own immaturity while entering into contracts
that create obligations towards himself.58 Similar is the evolution of the penal legislations of
the country which consider a minor to be immature and consequently award lesser
punishment. In comparison to these legislations, we find that the wishes of the minor have
been given greater importance in matters relating to custody. European and Indian courts
giving priority based on the age of the minor while taking his opinion into consideration
appears to strike the chord with such a view.
THE OTHER PARENT
It is reasoned by the court that the person who is not given the custody of the child is to be
allowed to visit the child. The same is held to be a necessity on two grounds:1. Owing to the fact that the welfare of the child is depends on his getting the affection
of both the parents and that the child has the right to know and interact with the other
parent.59
2. To grant the parent his right to not lose the society and affection of the child.60
The interesting issue came up before the court in Jwala v.Bachu, where the court agreed to
the proposition that denial of visiting rights to the father would result in prejudicing the right
of the father.61
The Delhi high court arrived at a similar conclusion by considering the welfare of the child,
stating that it is in the interest of the child that he should have the love and affection of both
the parents. 62 It further stated that the parent not having met the child for a long while would
in no way be an excuse for depriving the child of the company of his parents.
55
56
57
58
59
60
61
62
Amar Krishna Narain Singh v. Deputy CommissionerAIR 1958 All 710.
Ibid.
AVTAR SINGH, CONTRACTS AND SPECIFIC RELIEF,pg 148 (Eastern Book Company, 11thed 2013).
Ibid.
SatishMehra v. AnishaMehra, 70(1997) DLT616.
Kaliappa Goundan v. Valliammal,(1949) 1 MLJ 248.
Jwala v bachu, AIR1942CAL215.
Supra note 59.
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This judgment is a marked departure from the former view that based its reasoning on the
right of the parents.
The successive question is of the wishes of the children while granting visitation rights. It
was held in Indira Khurana v. Prem Prakash that the wishes of the child should be an
important factor in deciding whether a parent should have visitation rights. However, the
court contradicted itself by stating that visitation rights of parents should be denied only when
such visits would result in grave injury to the child either mentally or physically. Further, the
court went on to say that though it is recommended that the children be interviewed to know
their wish, the judges are under no obligation to personally meet the child to know his wish,
if granting of visitation rights could be supported from the material on record. 63
When it is the accepted view that the child getting the affection of both the parents is
essential for his welfare, the reluctance of courts in granting joint custody starts to draw
attention.
CONCLUSION
Thus, it may be concluded that the custody of children across the acts is based on their
welfare. However, welfare is objectively decided by the courts and may not always be in
accordance to the wishes of the child.
The age of the child is of utmost importance in deciding what would be a decision in the
welfare of the child. The same holds true with attaching importance to the opinion of the
child on who its custodian should be. The preconceived notions also depend on this factor.
However, these preconceived notions deciding what is best in the interest of the child are
rebuttable. They merely provide a ground for the court to start its reasoning on. Family being
a unit of socialization, the impact of the society and culture are clearly felt in these decisions.
The same impact is projected as the welfare of the minor.
This can be clearly observed when the courts have clearly ruled time and again that welfare is
not to be taken as welfare in terms of monetary benefits alone. However, the same has been
projected as an additional ground wherever the mother has been in a better financial position.
63
IndiraKhuranav. PremPrakash, 60(1995) DLT633.
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The root of it is clearly expressed in the words of Das J, when he says the “mother’s lap is
god’s own cradle for the new born child”.64 Law is not straight and scientific always. It may
also go to reflect the popular sentiments of the society and its constituents.65
Unlike a positivist point of view, judicial reasoning is not merely to apply the text to the
context to arrive at a judgment. The judgment involves societal bias and preconceived notions
and such notions remain nothing more than rebuttable presumptions. The statute having given
wide powers to the judiciary, the judiciary applies them to the situations in the best of their
discretions. In this, any attempt to restrict the exercise of the judgments of the judiciary will
only prove to be disadvantageous to the interests of the minor as each individual case has to
be decided on its merits. Attempts shouldn’t be made to restrict the power of the court by way
of societal biases in granting custody of children. Where the courts find it difficult to grant
custody without relying on such biases, they must be encouraged to use objective analysis as
a substitute for pre-conceived notions.
This ultimately goes to prove that the critical legal theorists may not always be correct in
their conclusions of the wordings of the law always influencing the people and popular
notions. While wordings may influence the popular notions to an extent, the popular notions
themselves direct and control the evolution of law.
While visitation rights are given to the parents, it is only to the extent to which their rights are
in concurrence with the welfare of the child (welfare of the child according to the judge).
The Law (Law as right reason) as well as the black letter of law (the statute) in India should
try to come out of the societal bias in addressing issues pertaining to child custody. Countries
such as the United States have gone a good deal in this regard in passing gender neutral
statutes for child custody. While these are not solutions that totally solve the problem of preconceived notions in granting custody, they are certainly a step towards achieving gender
parity in child custody. They at least ensure that existing social bias don’t get legal sanction.
The aim of statues as well as judicial precedents (welfare of the child) in cases relating to the
custody is indeed desirable. They treat the children not as mere objects of possession but as
living entities whose welfare is to be prioritized. Where the statutes refuse to change their
character, the judges should step in to remove the societal bias in granting custody, for law
64
65
Re Kamal rudra, ILR (1949) 2 CAL 374.
David Kairy, the Politics of Law: a Progressive Critique (3rded, Basic Books USA 1990).
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doesn’t not just involve the statute but as also its explanation was given by the best legal
minds of the age (law, from the anti-positivist point of view is inclusive of the statute and its
interpretation: George P. Fletcher 66).
66
George P Fletcher, Basic Concepts of Legal Thought (oup, ny 1996)28-38.
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