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Cites 5 docs
The Indian Divorce Act, 1869
Section 49 in The Indian Divorce Act, 1869
The Foreign Marriage Act, 1969
The Guardians And Wards Act, 1890
The Hindu Marriage Act, 1955

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Central India Law Quarterly
. Custody Of Children- Mother'S Role Over Fathers E
. CUSTODY OF CHILDREN- MOTHER'S ROLE OVER FATHERS E l ` V MONOPOLY IN INDIAN FAMILY LAWS AND TREND I V A _ OF JUDICIAL ATTITUDE. I Professor. Ba/dyanfh Choudhury* I V _ Institution of child care has taken shape of great concern both in _ _ I · Shastric Laws and Tex_tual Laws. Judiciary in this connection accepts the · concept of realism. Usually parents do take care but the difficulty arises L ` I when the parents are separated or divorced. Both the parents feel natural . affection for the child and want custody of their child. In such a situation a _ dilema arises as to the fact_of` guardianship and custodyof the child r ’ ‘ between the father and the mother even. after the marriage is ended. . I _ Right to custody and right to guardianship do not bear the same legal doctriniare. Guardianship is Va broader term than custody. Former comprises looking after the` interest of the child, such as education etc. 4 but custody on the other hand implies physical closeness and control " V over the child and its upbringing. Though the custody and guardianship V I differ with each other in their conceptuality but in reality both aims for the e interest of the child. Whoever between the father and the mother - _ possesses the right, the- mainaim of the confemmentpf the right is the I ` r interest of the child, which shouldtbe the guidelines of the legislature and V the Judiciary. ` I . - ` V i _ 2, V Under the Guardians' & Ward,Act 1890, the superior right of the _ father in respect of guardianship- was established. The position of the mother as a guardian of her children was of the second grade. Even the l father could under old.law nominate a guardian of his children soas to . — exclude the mother of the child through orally or the process ofthe . ~ ` execution of deed. The mother had no power to appoint testamentary guardian even if the father of the child had expired. V 3. The Hindu Minority and Guardianship Act 1956 reiterates the X traditional superiority of men and inferiority of women.e_rThe Kerala High · Court established in the case of.RamaChandra K,V..Annapurni Ammali V . that under Sec. 6 ofthe Act 1956 the father is natural guardian and it is I onlyvofter him the mothercan be natural guardian only in the case of an , lr * Professor, Burdwan University, West Bengal, M. Com. LL.M, Ph.D. The author owes { . teelgg Md. Momin, Sr. Lecturer, BLU. for his contribution on this. subject for doctoral _ · 1. ' A.l.R1964.Ker271. I . W e . E ‘ -- 112 . CENTRAL INDIA LAW QUARTERLY — [1999 illegitimate child, the mother is recognised as fully capable of looking after - the child. The Act 1956, for the first time conferson the mother of the ~ child the right to appoint a guardian by will ignoring the testamentary V guardian appointed by the father. The Act 1956 also lays down that the · custody of the child upto the age of 5 years will be with the mother. The _ right to custody has been qualified by the word, ordinarily'. Which has _ l raised the dilema in the judiciary. ln case of Yasudevan V Viswalakshmiz the mother was not given· the custody of the child aged 2 1/2 yrs. despite . the- provision of proviso to Sec 6(a). Thus it is manifested that a mother · s has been assignee statutonly subservient position in the matter ot the E custody of her minor children. I A 4. Under Muslim·Law the concept of guardianship is distinct from the l concept ot custody. Muslim law entrusts hidana (custody) of children in V their tender age to mother and the guardianship to father during formative ·years of the child. ln the event of the father being alive, he is the sole guardian of the person and property of the minor children. We can appoint any person by his will, a guardian of his children.- The right of . _ hidana belongs to the mother andnothing can deprive her except her own misconduct. lt is a right recognised soley in the interest of the children but it is not an absolute right. This means that if at any time it is felt that in the circumstances other life it would not be conducive to the physical, moral _ _ or intellectual welfare of the child to be kept in her custody, she can be deprived of it`. In the classical Hanari Hanafi Law the custody of the child is first vested in the mother. The Hanafi law as practicised in India V recognises -the mother‘s custody until the son reaches 7 yrs or a » daughters puberty wherefrom the custody is transferred to thefather.3 A Thus mothers right to custody is qualified. · I I Q T5. Under the Indian Divorce Act 1869 the Court has an unfettered discretion in making interim orders for thecustody, maintenance and education of the child. The discretion is to be exerclsedby the court in — considering the consideration of any particulars case. No hard and fast ‘ _ rule can be laid down. Thus it is evidenced that to Act 1869 emphasises . the father's prerogative. · · I ` 6. _ Section 49 of the Parsi Marriage and Divorce Act 1936 deals with ` 2. 1t.I.R. 1959 Ker,4os`. _ ‘ ‘ ~ sy ldu v Amiran(1B86) l.I..Ft. 8 All 3222. - 3 Vol.Xl|] V CUSTODY OF CHILDREN - . · H3 . the question of custody of the child if he is under the age of 16 years. The » Y Court jurisdiction under this Act provided (i) the child is under 16 years A- and (ii) the marriage of its parents is the subject of the suit. lt is found that ‘ . r fathers right prevails over the m0ther's right. ‘ _ i 7. From the above discussions it is summed up that the statutory · provisions are hesitant to confer the absolute right of custody to the mother. Love and affection as well as the care for health of the child is . . ‘ better rendered by the mother though the father can provide better - _ direction as to they course ‘ of education except in exceptional . circumstances. So it is the Judiciary who should have to play the role of a realist judge. lt is heartening to note that the Judiciary; today takes note of _ the realsim. ` . _ _ i [ · » Trend of-the Judiciary ·a New Horizon ‘ _ V . 8. The Act 1956 does not categoricallyrspecify the welfare of the _ children as a paramount consideration for conferring guardianship — — between father and the mother though Sec. 13(1) of the said Act has. V recognised that in case of declaration of any parson a guardian of the Hindu minor by Court. the welfare of the children shall be the paramount consideration. In the same way when in a matrimonial proceedings under the Hindu Marriage Act 1955 spouse demands the custidy of the children under Sec. 26 of the Act throught Court, the court should not strictly adhere to the priority of the fathers claim of .custody.and guardianship` A over mothers claim. The Court should. consider not only the economic ` position of the parents but the interest and welfare ofthe child should be taken infn consideration. The 'welfare' is ndfher defines or illustrated in J the Acts it is difficult to”state; The Kerala High_Court in case of Reddy V Fleddy‘ has clarified 'welfare *8S not merelymeterlal but also moral welfare. Whenever the welfare of the chlldrenhas been considered as . paramount the courts every where raises a presumption in favour of _ mother. ln the United State Caseslt is observed that a child of tender years is best served by, being entrusted to his mothers custody. Similar · attitude has been reflected in the lndian 08898. Contemporary verdicts C pronounced by l-ligh Couns and Supreme Court have now considered the - welfare ot the minor dismissing the preferential rightnarguments. The impacfof the provision of sec. 6(a) of Hindu Minority and Guardianship ,4. A.l.R,1S)75Ker134. _ _ 5 i Freeland v Freeland-92 Washinton 482, 698 (1916). I F A g _ 7 Y 114 CENTRAL INDIA LAW QUARTERLY ` [1999 » » Act 1956 claiming father's prerogatives, over mother has now been _ V _. watered down by the judicial activism regard being had to the Section » . __ ,13(1) fof the Act 1956. Though Sec. 13(_1) is specifically meant for A I guardianship and not for custody the courts have applied it to the - · disputed cases of custodypf childrenunder Sec, 26 of the Hindu. . A Marriage Act 1955 considering that both guardianshipand custody are interlocked concept. ~ ‘ 9. In Jijabai V Pathan Khan6 the Supreme Court recognised the I - _ wjotners right of guardianshipof her minor daughter even though father · was alive taking into account of the interest of minor. The same view was 1 — reiterated by the Supreme Court inthe case of Surinder Koner V Harbans ` Singh7 emphasising that though Sec. 6 ofthe Hindu Minority and_ -· Guardianship Act 1956 Constitutes the father‘s Priority of right of I V A guardianship subject to the paramount consideration of the welfare ofthe ` minor. . I `· . _ Trendtn Muslim Law I . . A 10. A Under the Hanafi. Law the mother has the right ofcustody er here . minor child upto- the age of 7 year. The guardianship factor is the welfare . . of the child. The courts in India protected the right of Muslim mother in the ‘ light of guardianship and Wards Act 51890. In the case of Salamat Ali V Majjo Begumg the principle of7 years was diluted.—The District Court in _ the case considered the age of the child asthe criterion of guardianship but the Allhabad High Court opined that thefwelfare of the child shall be · determinedthe basis of evidence and not on the basis of 7 years of age. ln the case of Mohammed Bakshi V Gulmin Fatima? the Lahore High Court held that for the welfare of the minor they were to remain in the ‘ _ custody of mother. In one Malayasiam Court casem it was held; · - _ ` . · "The basis and aim of custody is the welfare of the child W . . who is to be looked after and this isthe basis on right of . · » A ‘ the child. This right must paramount to the right of the person who claims the custody.' _ - _ 6. A.1.n. 1971 seats. — ‘ t » - ` 7. ‘ 19a4. It D.M.c. 1_ae (SC). 1 .- _ · 7 f_ a _ 8. A.l.R. 1985 All29. ‘ t _ ’ . V _ V — 9. 1953 Lah 73. · ‘ · ’ " 10; Wan Abdul Aziz V Siti Aishah (1975), JH(1) 47J ` ` ’ _ ( “ Vol.Xl|] ` CUSTODY OF CHILDREN . _?_"li5 · _ 1. lt is therefore observed that the courts in India, Pakistan and other Islamic countries recognise the welfare of the child as criterion for the custody of the child. s A ‘ Conclusion . (I ( I ` ( » - V ' The tendency of the judiciary is that the preferential treatment in I favour of the father of the custody of minor child is no longer viewed as · absolute. it being subjected to the welfare consideration ofthe minor. _ ; 13. s it is worthwhile to take note of the National Specialised Agencies ’· and women's equality-law Commission of India Reports-Eighty third Report on Women which recommended that it was necessary to allow the mother to have the custody of the minor till the age of 12 years by ` amendment of the Hindu Minority and Guardianship Act 1956. 14. The Law Commission of India reflected that mother should have · same and equal rights vis-a-vis father." . - ( ‘ , ( . .15. lt is worthwhile to place the Legislative proposal for Uniform Civil ` Code (1986) for referring the matter in connection with the child; - C (1) The matrimonial courtshculdcontinue to have jurisdiction on any. ` matter regarding the child. ` ( _ _ . » ` I (2) I The children shou_ld be treated as independent party and they i ( ‘ should be representedseparatély. I ` _ (_ “ (3) ` The property of the parents should be settled in favour of the children so that the welfare ofthe children on account of paucity of . _ the funds does not suffer. ( - ( ‘ A _ ( (4) In adjudication on any matter relating to children the matrimonial , A court should consider the wished of the children, parents financial position ol parents. suitability ofthe person who claims thecustody, ( age and sex ofthe child for deciding the welfare of the child. ` ‘ ( · (5) Access tc the children should be considered as complementary to . custody. · . ( ( — _ _ . ’ 11. (Law commission of India Reports on certain provision of the Hindu and- ; ( i Guardianship Act 1956 submitted April 1980. , ( I — ( — 116 ` ` GENTRAL INDIA LAW QUARTERLY A [1999 . lt is) suggested; A _ A A . , A ‘ l (i) The provision contained in Sec. 6(a) ofthe Hindu Minority and __ Guardianship Act 1956 constituting the father as the naturalguardian of a ` Hindu minor inpreference to the mother should be amendedso as`to continue both the father and the mother as being natural guardians iointly ‘ · and severally having equal rights. _ - V- · ‘ A (ii) The proviso to Sec. 5(a) shouldbe amends so that the custody - of the boy and unmarried girl who has not completed the age of 12 years . shall ordinarilybe with the mother. ~ , ; ‘ ·. g _ . — A . -· (iii) The welfare principle projected in Sec. 11 oftheHindu Marriage ‘ Act 1955 and Sec, 17 of the Guardianship and wards Act 1890 needs to . ‘ · be spelt cut for the simplicity of the iudicial pronouncement. _ . 16. It is the judicial activism which makes the cycle of the children- ‘ welfaremoving for highlighting the approach before the Legislative organ i of the State to actives the spirit. Q _ A V