How custody and guardianship already follow common principles

Source – timesofindia.indiatimes.com

Around the world, historically, most com munities treat the father’s right over his children as paramount. In India too, the father was traditionally privileged over the mother across most religious communities, sects and tribal customs.

The law has been rigid with regard to Muslim minors. Under Hanafi and Shia law, a schoolboy may be with the mother till the age of seven and two years respectively, while a daughter could be with her mother up to puberty under Hanafi law and until the age of seven under Shia law.

Under Hindu law, the custody of children under Section 6 of the Hindu Adoption and Guardianship Act, 1956, is with the father, and after him the mother, with the proviso that custody of a minor less than five years old should be with the mother. Under Section 49 of the Parsi Marriage and Divorce Act, 1936 and Section 41 of the Indian Divorce Act, 1869, courts are authorised to issue interim orders for custody, maintenance and education of minor children in any proceedings. Guardianship for Parsi and Christian children is governed by the Guardians and Wards Act, 1890.

The Guardians and Wards Act, 1890, enacted more than a century ago, also recognises the father as the natural guardian of a minor child, and enables him to apply for the custody of t he child. Unless there are overwhelming circumstances to the contrary, the law is firmly on the side of the father as the child’s natural guardian. Although this legislation applies across the board, irrespective of religion or community, to all petitions for guardianship and custody of minor children, Section 17 (2) of the Act provides that the court should consider the age, sex and religion of the minor while making a decision about his or her welfare. In this way, the personal law of the minor child comes into play while his or her guardianship and custody is decided.

The appointment of the guardian has to be consistent with the personal law to which the minor is subject, while keeping welfare in mind. In the case of Nina Deshmukh, the petitioner challenged Section 6 of the Hindu Minority and Guardianship Act for giving preference to the father, and violating Article 14 and 15 of the Constitution, the right to equality and non-discrimination. The writ petition was dismissed. Several years later, in the Githa Hariharan case in 2001, the Supreme Court held that the mother has to be assumed to be the child’s guardian even during the lifetime of the father, if he has abandoned, neglected or failed to maintain the child -thus easing the rigours of Section 6 of the Hindu Minority and Guardianship Act. In the same vein, even though Muslim law gives preference to father in custody matters, in actual practice over the last two decades the courts have given preference to the mother, giving greater weight to the principle of welfare rather than of personal law.

Before this change in the interpretation of custody laws, the father was often favoured because of factors like earning capacity and educational qualifications, which tilted the balance in his favour in a patriarchal society.

Section 26 of the Hindu Marriage Act, 1955 also provides for the court to make orders with regard to custody and maintenance of minor children, in case of a matrimonial dispute between the par ents. In recent years, there has been a sea change where the courts have increasingly, been granting custody of children to the mother in preference over the father. In 2005, Parliament enacted the Protect i o n o f Wo m e n Against Domestic Violence Act, which came into force in 2006, and has a presumption of custody in favour of the mother. Of course, all custodial orders are by their nature temporary, and a change in circumstances can warrant fresh arrangements.

The unfortunate fallout of giving one parent exclusive custody over the other has frequently resulted in the custodial parent using the child as a pawn or a chattel, despite the court warning them not to abuse their advantage. Psychiatrists and child experts have also begun to see the need for liberal access to the noncustodial parent, even as they recognise the need for stability for a child of warring or separated parents. In 2014, the Bombay High Court circulated child access and custody guidelines, which was adopted in various other states as well. The Law Commission has also circulated guidelines for shared parenting. Unless circumstances warrant otherwise, on grounds of moral turpitude, alcoholism, drug addiction, perversity and other factors, including past conduct, the non-custodial parent can no longer remain a virtual stranger to his or her children.

These guidelines could be debated and amended, and might form an ideal start for a Uniform Civil Code on guardianship and custody of minor children of estranged/separated parents. In the meantime, the courts have to shoulder the duty of making sure children suffer the least possible collateral damage and instability.