Ninad Mittal

Saptarshi Mandal
16 January y

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Analysing Indian custody laws

"Indian custody laws give an unfair advantage to the

mothers. The law presumes that mothers are more fit to take
care of children and hence in custody disputes courts always
side with the mothers and custody of children is awarded to
them. The need of the hour is to have gender neutral custody
laws in India. Further, like most western countries, we must
have joint custody so that fathers are not unfairly excluded
from custody of children.
I do not agree completely with the above statement,
Indian custody laws give an unfair advantage to the mothers.
The law presumes that mothers are more fit to take care of
children and hence in custody disputes courts always side with
the mothers and custody of children is awarded to them., as,
the laws which govern child custody in India are the Hindu
Minority and Guardianship Act, 1956, and the Guardians and
Ward Act, 1890. As per the HMGA, the natural guardian of a
hindu minors person and/or property, will be his father, and
after him will be the mother, except when the child in question
of custody is an infant or a child below the age of 5 years. So, in
the light of the laws which govern the custodial matters in the
country, one can easily identify the social patriarchal ideology
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embedded in the Indian society, the mother, is the second

choice as the natural guardian, one cannot come to the
judgement that mothers have an unfair advantage when it
comes to the custody of the child.
What the law truly wants, and is concerned about, is the
welfare of the child, and only after ascertaining the true
welfare of the child, is the custody of the child given to the
respected parent.
But the Supreme court makes it clear, that there shall be no
discrimination as to who should be the preferential guardian of
a child, in the landmark judgment1, where it said, gender
equality is one of the basic principles of our Constitution, and,
therefore, the father by reason of a dominant personality
cannot be ascribed to have a preferential right over the mother
in the matter of guardianship since both fall within the same
category. This statement, made by the SC, very clearly stated
that gender of the parent shall not be a consideration in
deciding the custody of the child. But after several years, the
HC quoted in the favour of mothers, by quoting that, it is the
most natural thing for any child to grow up in the company of
ones mother, and a child gets the best protection and
education only through the mother even in nature 2 . For this,
the SC in an appeal, held that, we make it clear that we do not
subscribe to the general observations and comments made by
1 Ms Githa Hariharan and another v. Reserve Bank of India and another (AIR 1999, 2 SCC
228)

2 II (2003) DMC 288, 2003 (3) KarLJ 530

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the High Court in favour of mother as parent to be always

preferable to the father to retain custody of the child 3.
Despite these observations and claims made by the SC, the
power and discretion of deciding the custody of a child always
remains in the hands of the judge deciding the case.
According to an article published in the Hindustan times 4,
they have recorded various cases, where the child, who meets
the other parent(not having the primary custody) once in a
week for 2-3 hours, acting very estranged from them, and the
children do not respond to their parent, they choose not to
interact with them. This is one of many problems posed by
absence of good jurisprudence in joint custody laws.
In its report Reforms in Guardianship and Custody Laws in
India, which it submitted to the law ministry on May 23, the
commission says that the childs welfare must be paramount in
any decision relating to custody. It also lays out a framework unprecedented in India - for awarding joint custody of the child
whenever it is possible.
The lack of the concept of shared parenting is what leads to
fights over the custody of children, and often the parent who is
not named as the primary guardian, is left with no other option
than accepting fortnightly visits to their children.
There are cases where joint custody is not granted by the
court, even when it is most desirable and favourable for the
3 AIR 2004 SC 1525.

4 http://www.hindustantimes.com/india/child-custody-laws-in-india-a-much-neededoverhaul/story-AXv1OA2WRqGLSQwM2Add9O.html

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welfare of the child in question. What happens is, the parents

keep aside the welfare of the child, and often just use the child
against each other, and this is not what the law wants, the law
has specifically set out that welfare of the child is of the prime
importance, but as mentioned above, the absence of joint
custody leads to the ugly consequences, and the welfare and
interest of the child is quashed.
But in an landmark judgement by the family court, soon
after the law commission report, a PIL was filed by a women
asking for the exclusive custody of her child, was not
entertained by the court, rather, the court came out with a
proper parenting plan5, and devised the schedule, where the
mother and father would each spend 183 and 182 days
respectively with the child. The ground that the mother was
more financially sound to take care of their child, was rejected
by the court, the concept of primary guardianship was quashed,
and the approach of joint custody was followed.
This approach of the family court, which quoted several
portions of the law commissions report emphasising on the
need for joint custody law reforms in India, is what needed to
answer the long-ignored plea of the children stuck in custody
battle, which often defeats the purpose of law, i.e the welfare of
the child.
The question now is, will this approach followed by the
family court, set precedent for thousands of similar cases?, will
there be any reform in the unprecedented issue of joint child
custody?. Let us hope for a better future, where India
5 page no.47 of the law commissions 257th report on custody law reforms.

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improvises by learning from other countries who are reaping

the benefits of joint custody. The least we can do is to praise
the report by law commission, for arguing in favour of the issue.

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