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Home / Articles / How to file for Custody of Children in India? By Rashmi Jain

How to file for Custody of Children in India? By Rashmi Jain

November 4,2018:

The Author, Rashmi Jain is a 5th year student of ICFAI, Hyderabad. She is currently interning with LatestLaws.com.

Introduction:

Child Custody Cases in India Rely on the concept of  “Best Interest of the Child / Welfare of the Child” , the  Bombay High Court in Carla Gannon vs. Shabaz Farukh Allarakhia[1] held that for determining the final decree, the child’s welfare was the supreme consideration, irrespective of the rights and wrongs that the parents contend.

Custody of Children
Custody of Children

Apex Court also held in the case Of Nil Ratan Kundu vs. Abhijit Kundu[2] has said that the welfare of a child is not to be measured merely in terms of money or physical comfort, but the word “welfare” must be taken in its widest possible sense so that the tie of affection cannot be disregarded.

Supreme Court in ABC vs. The State (NCT of Delhi)[3] gave a path breaking judgment on gender equality and ruled that even an unwed mother must be recognized as legal guardian of her child without forcing her to disclose the name of the child’s biological father.

With all the above cited cases it has become quite evident that Indian Courts want to bring in reforms w.r.t child custody matters. The matters related to child custody and custody petition primarily is dealt under three acts that are:

  1. Guardians and Wards Act, 1890.
  2. Hindu Marriage Act, 1955 (s.26 to be specific) and under exceptional cases
  3. Article 32 and 226 of the Constitution of India.

PROCEDURE TO OBTAIN CHILD CUSTODY UNDER VARIOUS ACTS:-

A petition for child custody or declaration regarding appointment of natural or legal guardian of minor starts child with the filing of the petition by the spouse seeking child custody. Notably, in child custody cases non-custodial parent seeks the custody/guardianship of the minor child. Such petition usually takes longer time and thus application for Interim or Temporary custody as well as Visitation Rights can also filed by the Non-custodial parent.

VISITATION RIGHTS implies regular meeting of the minor child with the non-custodial parent. General duration of visitation rights varies from 1-4 meetings per month.

INTERIM CUSTODY implies generally overnight custody or long hours of custody for a defined period to the non-custodial parent with undertaking to restore the custody of the child upon completing the defined time by handing it to the Custodial parent.

A Custodial parent must give response to the petition which followed by the evidence of both the parents. After closure of evidence of by both the parents and their respective witnesses, if any, follows with final arguments and consequent judgment.

Section 8 of the Guardians and Wards Act 1890 enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain application for guardianship.

1.Procedure under GWC Act 1890:

10 . Form of application.- (1) If the application is not made by the Collector, it shall be by petition signed and verified in manner prescribed by the Code of Civil Procedure, 1882 (14 of 1882), for the signing and verification of a plaint, and stating, so far as can be ascertained the name, sex, religion, date of birth and ordinary residence of the minor, where the minor is a female, whether she is married and if so, the name and age of her husband, the nature, situation and approximate value of the property, if any, of the minor, the name and residence of the person having the custody or possession of the person or property of the minor, what near relations the minor has and where they reside, whether a guardian of the person or property or both, of the minor has been appointed by any person entitled to claiming to be entitled by the law to which the minor is subject to make such an appointment whether an application has at any time been made to the Court or to any of the Court with respect to the guardianship of the person or property or both, of the minor and if so, when, to what Court and with what result, whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both. Where the application is to appoint a guardian, the qualifications of the proposed guardian. Where the application is to declare a person to be a guardian, the grounds on which that person claims, The cause which have led to the making of the application, and Such other particulars, if any, as may be prescribed or as the nature of the application.

11 . Procedure on admission of application.- (1) If the court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof and cause notice of the application and of the date fixed for the hearing. To be served in the manner directed in the Code of Civil Procedure, 1882 (14 of 1882) on the parents of the minor if they are residing in (any State to which this Act extends) the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant, and any other person to whim, in the opinion of the Court special notice of the applicant should be given, and to be posted on some conspicuous part of the court-house and of the residence of the minor, and otherwise published in such manner as the Court, subject to any rules made by the High Court under this Act, thinks fit.

  1. Procedure under Hindu Marriage Act, 1955

Section 26 of the Hindu Marriage Act authorizes courts to pass interim orders in any proceeding under the Act with respect to custody, maintenance and education of minor children, in consonance with their wishes. The Section also authorizes courts to revoke, suspend or vary such interim orders passed previously.

Furthermore in India the ‘best interest of child’ criteria is obscure and is left into the hands of judiciary to enumerate upon the parameters, in 1970 American National Conference on Uniform State Laws adopted the Uniform Marriage and Divorce Act which laid down the yardsticks to ascertain the best interest of the child. In the absence of such enumeration the judiciary is left unguided in India and in many cases the judiciary is forced to handout a decision in disillusionment with the stagnant enactments present.

Under Such Circumstances, The duty relies upon the parents to constantly interact with the child and let them know the separation in the family. This shall help retain their trust in the parents. Interaction further depends upon the age of the child. For toddlers, school goers sharing general information is appropriate while with teenagers there must be greater details shared as to what exactly are the reason for the separation.

  1. Procedure under Article 32 and 226 of the Constitution of India

In some extra – ordinary situations a writ petition under Article 32 of the Constitution of India can be filed in the Supreme Court or a write petition under Article 226 of the Constitution of India can be filed. Such exceptional situation would include but not limited to one parent unlawfully take the child from the custody of other parent or unlawful retention of the custody of the child by the other parent or custody granted by a foreign court but the father or the mother as the case may be has taken the child out of the jurisdiction of that foreign court or the country. Such petition is filed in nature of Writ of Habeas corpus for Child Custody. It is filed for the expeditious determination of the issue. It is not a full-fledged child custody petition having but has limited jurisdiction. However, Supreme Court or High Courts are vested with extra ordinary powers/jurisdiction to determine the issue. Timing of filing such petition is utter importance.

CONCLUSION AND SUGGESTIONS:
The Guardianship laws in India require Improvement and evolution to match the sociological changes in 21st Century India and beyond. The Present system even though considers the interests of the child to be paramount in nature. The 257th Law Commission Report[4] , also suggested few points for consideration:

  1. Evolution of Concept of Joint Custody can be borrowed from the state of Virginia In United States. “Joint custody” means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child’s primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child, or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.
  2. Consideration of Important Factors for “BEST INTRESTS”A number of jurisdictions have statutes that enumerate specific factors to guide courts when they consider the best interests of a child. Generally, these factors relate to the physical and mental condition of the child; the physical and mental condition of each parent; the child’s relationship with each parent; the needs of child regarding other important people (siblings,extended family members, peers, etc).; the role each parent has played and will play in the child’s care; each parent’s ability to support the child’s contact and relationship with the other parent.
  3. Inclusion of a new section (6A) in Hindu Marriage Act, 1955 is an amendment. This section shall list the natural guardians of a Hindu minor, in respect of the minor’s person and property (excluding his or her undivided interest in joint family property). In the case of a boy or an unmarried girl, this section shall state that the natural guardian of a Hindu minor is the father, and after him the mother. Even after the Supreme Court’s judgment in Gita Hariharan vs. Reserve Bank of India[5], the mother can be a natural guardian during the lifetime of the father only in exceptional circumstances. This is required to be changed to fulfill the principles of equality enshrined in Article 14 of the Constitution.

Hence, the above steps might help ensure a better future for the child. These steps if implemented can be helpful to the dynamic sociological changes in India.

FORMAT OF PETITION FOR CUSTODY:

Petitioner’s full name name (Who seeks custody)                                        Petitioner

Vs.

Person (Who Has Custody at Present)                                                           Respondent

  1. We got married on XYZ date in ABC place etc.  Mention details like marriage certificate if marriage is registered, else some proof like wedding card, wedding photos etc.  Copies of these will be attached with petition.
  2. A child was born out of wedlock on so and so date.  Child’s birth certificate is in exhibit N.
  3. Currently the child resides with respondent at so and so place.
  4. I submit that I work as xyz at so and so place/company/own business etc.
  5. Child is being deprived of father’s love, presence, and company due to respondent living separately and having taken the child with her.
  6. I can take good care of child. Now here give several points as per your sole custody or shared custody goal, like how you can take care of child, and child is attached to you, and how you can contribute to child’s growth and development.  I would suggest desist from bragging about your financial earning or status, since that only reduces one from father to an ATM.  This is a major trap which many men fall for, thinking that their earning and income will be a major factor for court to decide child custody in their favour. What will instead happen is that the court will say that mother is required for the small child (most of cases we see are in early stages of marriage), father is earning well, let him pay maintenance to wife for both wife and child, and award you twice visitation a month to show love and affection to child.  So from hoping-for-full-custody-dad-thereby-teaching-wife-lesson-too, one becomes a visiting dad in child’s life in short order.  And the much bragged about high earnings of father can only be useful now to buy expensive gifts for the kid, which have more of excitement than growth value for kid.
  7. Depending on child’s age and requirements, you can suggest to take responsibility of child’s school fees, educational expenses, which is a very good strategy otherwise too, since that gives you some or full control over which school the child goes to.  The reason for this is that sometimes mothers can change child’s school just to keep kid further away from father, or for various reasons.
  8. Offer to open a bank account in minor child’s name where you can be guardian, and you can suggest respondent can be made guardian too, and that account will be used only for purpose for spending on child.  This will end the possibility of maintenance given to wife in name of child being used for other purposes.  Later, you can ask for bank statement of this account and if there are lot of unexplained withdrawals from the account, which the respondent mother can’t explain how were being spent on child’s welfare, then you can use that point to gain better child custody or full custody in case of gross misuse of the funds too.  The deposits into that account can be made in proportion of incomes of husband and wife.

[1]Criminal W P No. 509 of 2009 (BOM HC)

[2]AIR 2009 SC (Sup) 732)

[3] AIR 2015

[4]Reforms in Guardianship and Custody Laws in India May 2015

[5](1999) 2 SCC 228

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