The welfare principle
In every custody dispute, the paramount consideration is the welfare of the child, not the rights of either parent. The Supreme Court reiterated in Gaurav Nagpal v. Sumedha Nagpal (2009) that the court must look at the child's age, need for stability, education, health and emotional bond with each parent, along with the child's own wishes if the child is old enough to express them.
Statutes that apply
Custody and guardianship are governed by the Guardians and Wards Act, 1890, the Hindu Minority and Guardianship Act, 1956 and, in divorce proceedings, Section 26 of the Hindu Marriage Act. Other communities are governed by their personal laws in addition to the Guardians and Wards Act.
Natural guardians and the age of five
Under Section 6 of the Hindu Minority and Guardianship Act, the father is described as the natural guardian, followed by the mother, but the custody of a child under five years is ordinarily with the mother. In Githa Hariharan v. Reserve Bank of India (1999), the Supreme Court read the provision so that the mother can act as natural guardian even during the father's lifetime.
Types of custody orders
Courts may grant sole custody to one parent with visitation to the other, joint or shared custody with an agreed parenting plan, or, in exceptional cases, custody to a third party. Courts increasingly encourage arrangements that keep both parents involved.
Visitation and interim arrangements
Where a child lives with one parent, the other is usually given visitation, sometimes supervised, and holiday access. Interim orders are common during the pendency of divorce or guardianship proceedings and can be modified if circumstances change.
Habeas corpus and cross-border issues
Where a parent removes a child in violation of a court order, a writ of habeas corpus may be available. In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019), the Supreme Court held that the remedy can be used in custody disputes, though the court will still decide on the welfare of the child. Disputes with foreign elements need special care, since courts consider the child's habitual residence and the orders of foreign courts.
Frequently Asked Questions
Q. Does the mother always get custody?
A. No. The court decides on the child's welfare. Young children are often placed with the mother, but a father can be granted custody when it serves the child better.
Q. Can a child choose which parent to live with?
A. The court can consider the preference of a child who is mature enough, but it is only one factor.
Disclaimer: This article is for general information only and is not legal advice. The law may change, and the facts of each matter differ.