Myths pertaining to child custody in India

Child custody laws and myths in India

In India, both the parents of the child have equal rights of custody. Child Custody involves the right of a parent to make decisions about the living conditions, education, and health of a child.

When parents decide to separate, the issue of child custody arises and the Court’s jurisdiction is invoked to decide that which parent shall have the custody if there is no private agreement between the parties. The Court may also take suo motu cognizance wherein it can decided the issue of custody on its own without any application or petition. It may also grant child’s custody to grandparents in cases the Court found that the parents are unfit or departed or for the welfare of the child.

There are many factors which includes welfare of a child, such as: safe keeping of the child, ethical upbringing of the child, good education, and economic wellbeing of the guardian, etc. In this article we will discuss the myths and misconceptions related to child custody in India.

There are a few myths that are prevailing regarding child custody in India, such as:

1. Only a mother is a natural guardian of a minor child,
2. A mother will always get her child’s custody,
3. A father cannot get custody of a minor child,
4. A parent earning better will always get child’s custody,
5. Grandparents can never claim for grandchildren’ custody,
6. Custody disputes always go to court;
7. If the child is old enough, they will be able to decide custody;
8. The custodial parent can move away with the children anytime;
9. A parent not able to pay child maintenance, won’t get visitation;
10. No remedy against the partner bad mouthing my child;
11. Fathers always have to pay child maintenance;
12. One parent filing for child custody prior to other parent will be given preference by the Court;
13. A custody order/agreement can never be changed once it is in place;
14. Custody is all or nothing, etc.

Custody of a minor child and surrounding myths

• Child custody through Court only: Not necessarily, the parents can have a private agreement and they act accordingly, may not involve Court at all. However, in case of violation of the agreement, the aggrieved party can approach to the Court.
• Child can choose his custodial parent: The child is given the privilege to choose between either of the parents when 9 years and above, however the Court has discretion to decide and only after turning 18, a child can decide his custody.
• No visitation if maintenance for child not paid: Visitation rights and payment of maintenance are two different things that are governed by Court orders with respect to those two issues.
• Bad mouthing the other parent: This can lead to repercussion as the Court prioritizes the child’s emotional and mental well-being. Disrespecting the other parent can harm the child emotionally and it is not appreciated by the Courts.
• Father to always pay child maintenance: This is a misconception as both the parents are liable to bear child maintenance, if earning. The same shall be decided in the ratio of their
• Filing prior to other partner gives priority: The Supreme Court of India and the other Courts have repeatedly clarified that for the child custody, the only consideration is the child welfare, irrespective of the claims of the parties to the custody.
• Once custody order is passed it cannot be altered: Custody orders are not rigid and hence not final, it can be molded and altered considering child needs and welfare. This is another myth that once child custody is given to one parent, the same is for life and it cannot be terminated by the Court.

In Dhaninder Kumar v. Deep Chand, the Court clarified that the power to remove a guardian is discretionary and not mandatory. It further clarified that the Court has the power to regulate the conduct of a guardian through exercising the paternal jurisdiction. Once the child attained the age of majority i.e. 18 years of age, they are considered to be adult, and guardianship automatically comes to an end.

Child custody always with mother: The custody of a minor child would go to either parent. A child who is below 7 years of age, his/ her custody would preferably go to mother but if she is not psychologically fit or not able to provide the parental upbringing then custody of a minor child will be given to father. The Court in the case of K M Vinaya v/s. B. Srinivas, ruled that both parents are entitled to get custody for sustainable growth and development.

In another case of Bimla and others v/s. Anita, the Court held that mother is the best person to effectively take care of child’s interest and welfare of the child lies with the mother. However, there is no set rule for the same and the Court considers various factors while determining child’s custody.

In Sharma v. Arun Sharma, the Court clarified that the father should receive custody if the mother is found to be unsuitable for the child, and if the father could prove that he is the best person to raise the child. To get the child’s custody, a father must establish that giving the child to the mother would not be in the child’s best interests. Hence, considering various factors, the father may also get custody of his kid.

In Githa Hariharan & Anr v. Reserve Bank of India & Anr. the Supreme Court stated that gender equality is the fundamental principles of the Constitution, which was misinterpreted by the Karnataka High Court, that held that growing up with one’s mother is the most essential and natural phase in a kid’s life, when “a child gets the best education and protection.” The Supreme Court has rejected the notion that a mother’s custody will always be preferred over the father.

All-or-nothing child custody fight: This makes the existing issues more complicated between the parents and the Courts support joint legal custody or joint parenting, which means that both parents have equal rights and access towards the child. It includes the child’s education and upbringing, and both the parents would share the physical custody of the child having equal contact with the child. The court promotes shared parenting or joint custody and ensures that non-custodial parents should get proper/ frequent access to the child.

When father can get child’s custody

• Mother is not mentally stable, the father will get custody of the child;
• A child 13 years and above, if expresses his wish to stay with the father, then the father will be granted child’s custody;
• Mother a drug addict, an abusive or of an immoral character, then father shall get child’s custody;
• Mother is financially and physically not capable to take care of the child, then Court may grant the custody to the father;
• If the father proves that the mother cannot up bring the child properly and child’s furture will be in dark.
• If a mother is a convict, a criminal then the father will get child’s custody.

Some other common myths

Mother is only natural guardian: No.

Mother and father both the parents are the natural guardian of a child.

Custody of a legitimate child: U/s 19 of Guardianship and Wards Act, 1890 and u/s 6(a) of Hindu Minority and Guardianship Act 1956, the father is the natural guardian of his minor legitimate children, sons and daughters. However, a father’s right of guardianship is not above the welfare of the child. Hence, the Court can decide what is in the best interest of the welfare of the child.

 Illegitimate children: The mother is the natural guardian of the minor illegitimate children even if the father is alive. Again, the mother has the first right over the child’s custody but Court shall consider other factors while determining the same.

Only mother can seek child’s custody: No.

Both the mother and the father have the right to apply for the child custody. The Guardians and Wards Act, 1890 gives complete power to the court to decide the most suitable guardian for the child, hence based on the factors discussed above, the Court decides what is in favour of the child.

The earning capacity of a parent is not the sole factor to decide the custody of a child. The court takes into consideration the capacity of a parent to give a safe and secure environment for a child. There is no bar for a non-earning mother to have child’s custody if she can provide a better environment. Similarly, there is no bar that a father will not be given a minor child’s custody.

Mother will always get minor child’s custody: No.

The prime parameter to decide child custody is based on his welfare that with whom he/she would get the best upbringing. The mother is usually given preference when child is less than five years old but there is no rule that father cannot get the custody or he can claim it once the child turns above five. On filing of application for visitation rights, the Court allows rights to meet with the child to the parent who has not got custody.

Only a biological father can claim child’s custody: No.

A person may not be a biological father of the child but may get custody based on his name as a father in child’s birth certificate. The Court may impose various duties on the father, including complete financial responsibility, well-being of the child, etc.

Grandparents cannot claim grandchild’s custody: No.

The Court may also grant custody to grandparents if the child’s parents are not alive or they are an addict or for any other reason. The priority will be given to the parents if they are capable in all ways to provide the child a good environment.

Conclusion

In the custody battles between the parents, the psychological equilibrium of a child is majorly affected, and the parents forget that in their dispute the major sufferers are their children. As discussed above, the courts around the globe have given the child’s welfare the paramount while granting custody to either parent. However, now courts have been emphasizing the shared parenting and joint custody of the child.