Child Custody Cases

Legal Framework of Child Custody in India 

• The Guardians and Wards Act, 1890: This is the secular law governing child custody and guardianship for all religions. It comes into effect when all the personal laws are silent or the court feels it essential to prioritize a child's well-being. Section 7 of the Act allows for the appointment of a guardian for a minor child, ensuring the well-being of the minor child is the priority. Section 25 of the Act allows a guardian to seek custody of the child if someone illegally holds back the child from the real guardian. 
• The Hindu Minority and Guardianship Act, 1956: The Act applies to all Hindus, including Buddhists, Jains, and Sikhs, and supersedes the Guardians and Wards Act, 1890. Section 6 of the Act states that the father is the natural guardian of a Hindu minor child, but if the child is below the age of five, the custody of a minor child will consistently be awarded to the mother. Section 13 of the Act takes priority over other provisions by highlighting that the child's well-being is the most essential factor in considering custody or guardianship. 
• Muslim Personal Law (Shariat) Application Act, 1937: Relevant to all Muslims, As per Islamic Law the mother of the child is generally given the custody known as Hizanat, at the child’s young age, but men also have the rights of guardianship (Hizanat age restrictions vary by school of thought). Generally, girls stay with their mothers till the time of puberty, while boys can wait till the age of seven years. However, this differs; if the child's well-being is in danger or the father is deemed unfit, the court can intervene. Indian courts have held that the well-being of the child is primary where there’s a conflict among Sharia.
• Special Marriage Act, 1954: The Act applies to inter-religious marriages and secular cases. Section 38 of this Act offers a framework for guardianship and custody in some instances. Courts utilize a child-centric path, prioritizing the well-being and welfare of the child, similar to the Guardians and Wards Act.
• Protection of Women from Domestic Violence Act, 2005: Section 21 of the Act allows the court to provide the mother with interim custody of a child in the case that she is a victim of domestic violence. This provision safeguards the health and safety of a child in dangerous circumstances. To protect a child from an abusive environment, courts may provide interim custody orders under this Act. Generally, later decided by family or civil courts.
• The Indian Divorce Act, 1869: This Act allows both parents to request custody in the event of a divorce between them. Sections 41 and 42 of the Act address this situation. Courts make judgments relevant to what is best for the child, and they often give the mother custody of younger ones.
• The Parsi Marriage and Divorce Act, 1936: Applicable to Parsis. Allows custody to be determined during proceedings of divorce with an acknowledgment of the welfare of the child. Generally, the Guardians and Wards Act, 1890, abides by similar principles.
• Juvenile Justice (Care and Protection of Children) Act, 2015: Applicable to every community. When a child is neglected or parentless, or when there is an unavailability of any other legal guardian, the JJ Act comes into effect. For the best interest of the child, guardians or adoptive parents may be granted custody of the child under the JJ Act. This law has been amended to deliver a remedial, child-centric focus, especially when the child’s biological parents are unable to provide for them.
• The Constitution of India and the Rights of Children: The state is encouraged to safeguard children’s growth and health by the Directive Principles of State Policy, Article 39(e) and Article 39(f). When judging complex custody issues, especially when welfare, well-being, and safeguarding are significant concerns, the court may make recommendations that align with constitutional provisions concerning the rights of children.
• The Family Court Act, 1984: Section 9 of the Act deals with the conciliation and settlement issues regarding marriage, divorce, child custody, and guardianship. This helps resolve and settle custody issues amicably before the litigation process begins.

Types of Custody

• Sole Custody
  • In a sole custody arrangement, one parent (the custodial parent) has primary physical and legal custody of the child.
  • The custodial parent is responsible for making important decisions regarding the child's upbringing, such as education, healthcare, and religious matters.
  • The non-custodial parent typically has visitation rights, allowing them to spend time with the child, but may have limited decision-making authority.
• Joint Custody
  • Joint custody involves both parents sharing physical and legal custody of the child.
  • Both parents have the right to make crucial decisions together regarding the child's well-being.
  • This arrangement allows for substantial parenting time with the child by both parents, often requiring effective communication and cooperation between them.
• Legal Custody
  • Legal custody refers to the decision-making authority over a child's life, encompassing choices related to education, healthcare, religion, and other significant matters.
  • It can be awarded solely to one parent (sole legal custody) or jointly to both parents (joint legal custody), or a guardian if parents don't exist, or in other exceptional circumstances to someone appointed by the court.
• Physical Custody
  • Physical custody determines where the child will primarily live and how parenting time is divided between the parents.
  • In a sole physical custody arrangement, the child resides primarily with one parent, while the other parent may have visitation rights.
  • In joint physical custody, the child spends a significant amount of time living with both parents, often on a schedule agreed upon or ordered by the court.
• Temporary Custody
  • Temporary custody is an interim arrangement established during the divorce or separation process.
  • It provides a temporary solution to ensure the child's well-being until the final custody arrangements are determined.

International Legal Framework of Child Custody 

• The United Nations Convention on the Rights of the Child, 1989: This is a universal human rights treaty that specifically outlines the rights of children in various areas, including politics, economics, and culture. It provides a framework for safeguarding and caring for children, encompassing some key legal principles related to child custody.
• Bilateral and Multilateral Agreements: Countries may agree with each other, either bilaterally or with multilateral countries involved, to address the issue of child custody and cases of parents taking away their children unlawfully. For example, India hasn’t signed the Hague Convention but has special agreements with other countries to facilitate cooperation on child custody and cases of abduction.
• Bureaucratic Principles of International Custody Disputes: In cases of international child custody disputes, the recognition of jurisdiction, in which the court acquires the authority to decide the case, is very crucial. Various nations follow different fundamental principles when setting up jurisdiction.
• International Mediation Centers: Many nations have established international mediation centers dedicated to resolving cross-border child custody disputes. These centres are specially designed to guide parents in negotiating and respecting the child's rights while avoiding lengthy court battles. 

Judicial Activism  

• Lekha vs P. Anil Kumar (2006): The Supreme  Court of Kerala held that financial stability is not the only determining factor of custody; the child’s emotional and mental well-being and connection with each parent are also necessary. The court acknowledged that custody should not be based solely on substantial wealth, but should also consider the care and supportive environment that a parent can provide. 
• Abhijit Kundu vs Nil Ratan Kundu (2008): In this case, the Supreme Court held that when deciding custody, the child’s psychological and emotional welfare should be considered a priority. In this case, the father was deemed unfit; therefore, the court granted custody to the child's maternal grandparents. This judgment maintained the significance of the child’s mental and emotional health and the idea that custody judgments should take the child’s consistency and comfort into consideration rather than just biological relationships.
• Gaurav Nagpal vs Sumedha Nagpal (2008): In this case, the Supreme Court held that in disputes of custody, the welfare of the child is the top priority and mandatory. The court highlighted that parental rights are inferior when it comes to the best interest of the child, which should be the primary consideration in deciding the custody.
• Anjali Kapoor vs Rajiv Baijal (2009): This case deals with the difference between Guardianship and custody. The Supreme Court rules that, even though a parent might be the legal guardian, custody can still be given to the other parent if it relates to or is in the best interest or well-being of the child.
• Roxann Sharma vs Arun Sharma (2015): The Supreme Court ruled in this case that, unless the mother is displayed to be ill-suited or unfit, custody of the child under the age of five years old should ideally belong to her. However, the principle of welfare still governs the conclusion; the court held that small children require maternal care and nurturing.
• B.R. Srinivas vs K.M. Vinaya (2016): In this case, the Karnataka High Court granted joint custody for both parents, saying that the child should be given the chance to build a relationship with both parents. To ensure the child had frequent access to both parents, the court suggested a co-parenting strategy. This judgment is significant for promoting the concepts of cooperative parenting, joint custody, and encouraging both parents to remain actively involved in their children’s lives.
• Vivek Singh vs Romani Singh (2017): In this case, the Supreme Court recognized the emotional effects on children of parental separation and acknowledged it as an element in custody disputes. The court adopted custody rules post-concluding that the welfare of a child could be damaged by dispossessing the child of their relationship with the other parent.
• Yashita Sahu vs State of Rajasthan (2020): In this case, the Supreme Court emphasized the significance of joint custody and virtual visitations in the case of custody, especially in circumstances where parents live in different locations, states, or overseas. The court held that a child’s welfare is served by maintaining a healthy relationship with both parents, whether virtually or physically.

Legal Remedies for Non-compliance with a Custody Order

• Filing an Execution Petition: An execution petition is a legal instrument used to enforce a court’s order. If one parent fails to comply with a custody order or visitation order, they can exercise their right to petition under Section 25 of the Guardians and Wards Act, 1890. The parent should file the petition in the same court where the custody order has been issued. 
• Filing for Contempt of Court: Declining to obey the custody orders of the court might result in being held in contempt of court as per the Contempt of Courts Act, 1971. The parent who is being refused visitation or custody has the option of filing contempt proceedings.
• Initiate Contempt Proceedings: If an individual is intentionally breaching the orders of custody, one can submit a petition in the family court under Section 10 of the Family Courts Act, 1984, also under Order XXXIX, Rule 2A of the Code of Civil Procedure. 
• Seeking Police Assistance: In circumstances like one parent has illegally taken the child or refused to return the child, along with the visitations, the rightful parent can seek support from law enforcement authorities. The court may command the police to regain the child and return it to the rightful, legal, or custodial parent.
• Alteration of Custody or Visitation Orders: If there is any kind of need with the non-compliance of custody or visitation orders, the compliant parent can file the petition before a court for alterations of the custody order. The court has complete discretion to alter and adjust visitation and custody orders based on the circumstances of the case, such as the welfare of the child. It may change the primary custody of the child by transferring it to the compliant parent if necessary, as well as regulate visitation rights.
• Habeas Corpus (Article 226 or Article 32 of the Indian Constitution): In cases where one parent has illegally held up the child, the other rightful parent can file a petition of habeas corpus in the High Court. This writ is used to bring the child before the court to ensure that the custody arrangement is lawful. The court may instruct the police to locate the child and return the child to the legal guardian. This writ is issued under Article 32 (Supreme Court) or Article 226 (High Court) of the Indian Constitution, managing the non-compliant parent or third person to bring a child to the court and explain why they have kept the child if the court finds it illegally, it will direct immediate release and sent back the child to the rightful guardian.
• Criminal Actions for Kidnapping or Abduction: In major circumstances where a parent runs away with the child or shifts them to another place or jurisdiction without the permission of the court, the other parent, if feels necessary can file a criminal complaint for kidnapping or abduction under The Bhartiya Nyaya Sanhita, 2023 (BNS). Under relevant Sections like Section 137, which defines kidnapping, and Section 138, which defines Abduction. Initiating a criminal complaint should be contemplated as a final way out in such circumstances.
• Custody Orders and Restitution of Conjugal Rights: In circumstances where custody orders are given along with a decree of the restitution of conjugal rights, mainly in cases of separation or divorce, the CPC allows the application of such orders. The CPC’s execution provisions also permit application in cases of non-compliance with restitution orders under Section 9 of the Hindu Marriage Act, 1955.

Procedures for Filing an Application for Child Custody

• In cases of matrimonial disputes and separation of partners, if there is a dispute over child custody, an application can be filed with the Family Court. In the absence of the establishment of the Family Court, it can be presented before the Court of Sessions, under the appropriate laws of child custody as mentioned above. 
• All the essential ingredients of the grievances should be mentioned in the application/petition.

How Can Seasoned Advocates Help You?

• In-depth Case Assessment: To reach a final result, begin by precisely examining each case. This involves being aware of the client’s aims and objectives, the client’s necessities, the history of the family, and any specific circumstances that might influence the court’s decisions.
• Customized Legal Strategy: Elaborate a plan based on their understanding to achieve the most significant result, whether it is joint custody, sole custody, or the visitation schedule. 
• Family Court Procedures: Well aware of the intricacy of the proceedings, like jurisdictional necessities, procedures of document submission, and presentation of evidence. They can help you throughout the litigation. 
• Cautiously Handling In-Camera Proceedings: To maintain privacy, family courts often hold in-camera procedures in cases of child custody disputes. To protect the child’s mental health in these conserved environments, acknowledge and value the importance of upholding a non-adversarial attitude.
• Mediation for Cooperative Resolutions: Can try to settle custody issues without strengthening opposition. Guide parents in making collectively acceptable decisions by using mediation and negotiation strategies, which are particularly helpful in cases involving joint custody.
• Encouraging Parental Cooperation: Provide a joint custody strategy when parents can manage together, thereby maintaining the child's right to healthy relationships with both parents. 
• Filing for Contempt of Moderation: Help you with filing for contempt under relevant family law legislation or parts of the Code of Civil Procedure when one parent neglects a custody or visitation order. Ensure that the child's right to see both parents is defended by guiding the outraged parent in taking immediate legal action to enforce compliance.
• Adaptation for Changing Situations: Can guide in adjusting and adapting custody orders when there are significant changes to the circumstances, such as a parent moving, getting remarried, or raising new concerns about the child's safety. 
• Guidance in Abuse or Negligence: Carefully compile proof and expert declarations in cases that entail claims of abuse or disregard to make a credible argument in the court.   
• Dealing with Jurisdictional Disputes: Assist with Indian and International Custody laws, such as the Hague Convention on International Child Abduction, in international child custody disputes where one parent leaves or plans to move overseas.
• Implementation of Foreign Custody Decisions: In disputes involving cross-border custody, assist clients in understanding how Indian courts may interpret or enforce foreign custody judgments.

Conclusion 

In conclusion, Indian laws regarding child custody are becoming increasingly equitable and fair. They prioritize what is best for the child while also honoring the rights of parents. Although further modifications may be made to formalize joint custody, current laws are influenced by forward-thinking court judgments that prioritize the child’s welfare. This modifying way of thinking provides children with a stable and caring home where they have healthy relationships with both parents, supporting them to grow up healthy and happy. To know more, contact us.