Parents raise their child together but after divorce, both of them want the custody of child in their favor. Court never see welfare of parents but see the welfare of child whose custody is in question. The word “welfare” includes physical and mental welfare. Court awards physical custody to the parent who has adequate parental skills, financial security, environment for the proper growth and development of child. Legal custody of the child means that the parent have all the rights to take decisions for the benefit, growth and development and other parent who don’t get the custody have the certain visitation rights. Custody of child to one parent is the tough decision of the court. Court after considering all the viewpoints and evidences with full care and caution, pronounces the judgment because child future is at risk and child is consider as the future builders of the nation.
The main acts prevailing in India concerning to child custody are very few, which are-Hindu Minority and Guardianship Act, 1956, Guardians and Wards Act, 1890. Hindu Minority and Guardianship act, 1956 is a personal law and govern the problem, which are related with child custody. Guardians and Wards Act, 1890 is the secular act, which is applicable to all the people of all the religion such as- Christian, Muslim, Parsi and other religion. The provisions of both the acts are not in derogation to each other and the court ordered to run the acts in a harmonious way.
According to law, both parents have equal right to get the custody of their child. However, according to the section -6(a) of the Hindu Minority & Guardianship Act, 1956, custody of child with tender age should be given to the mother of that child. So all of you are thinking that it is the discrimination between mother and father in context of custody rights. No, it is not the invalid discrimination because according to the article -14 of the constitution, the discrimination, which has reason or object behind to achieve are permissible. The word intelligible differtia means the classification, which has some sense, are permissible. In this case, the child is under tender age and mother is the only person who can take care of that child. Therefore, the discrimination against the father is valid because it shows some reason or object to achieve, which is the welfare of the child.
In the landmark judgement of Roxann Sharma V/S Arun Sharma, dealing with custody of child. In this case, court held that the both have equal rights to get the custody but the child is under tender age according to section- 6(a) of Hindu Minority & Guardianship Act, 1956 mother will get the custody considering the welfare of the child as their main objective to achieve. Court furthers says that the child should be treated as the chattel and father is treated as the natural guardian but for the child of tender age mother is the best option because at that age child have different needs and require extreme amount of care, which is only fulfilled by mother. The Court given this decision after carefully examining the welfare of the child, which is the main point in the custody cases. Father can have the custody in the minor child case but not in the tender child case. Parliament has rightly assumed the needs and welfare of the child. Therefore, father will never get the custody of his child. Father can get the custody if he proves that the mother is unfit for the child in all sense.
The apex court quashed the judgment and give custody to the father and reason given by the court is that if the mother is unable to prove his suitability for that child and father proved that mother is unfit for the child and he is the suitable person for the child.
Therefore, it come to conclusion that the custody of tender age will go to the mother but if the father gives valid reason that the growth, development and welfare of child is under risk than only the custody of the child is given to father. This reasoning comes out with the exception for the rule of the section -6(a) of the Hindu Minority and Guardianship Act, 1956. The court said that for getting the custody of the child, onus is upon the father to prove that the custody to the mother will not lead to the welfare of the child. If father is unable to proof the unsuitability of the mother for that child than custody will go to the mother. The word “unsuitability” means that the mother has been abusive, neglected, or failed to provide proper care for the child. The custody of child of tender age should be given ordinarily to mother but you cannot oversimplify the term “ ordinarily” by giving all the custody of tender age to mother. Parliament has made the section-6(a) of the Hindu Minority and Guardian Act, 1956 only for the welfare of child it does not mean that court cannot make exceptions to it. By this judgment, it is concluded that father can also get the custody of his child if conditions prove satisfactory.
BBA LLB from Galgotias University, Greater Noida.