Do Fathers Have Equal Custody in Indian Families?

Divorce of a married couple not only affect the life of the husband and the wife, but it also specially affects the life of the child. This is the point when the question of child custody arises. Child custody refers to the rights given to parent by the court to look after the child keeping in mind about the child’s utmost care in every aspect possible. Th e parent to whom the custodial rights has been given to a parent who could look after the financial security, healthcare, emotional, mental and physical development. While the other parent gets the right to meet his child. By this Indian court by respecting both the parent’s emotional connection with the child, try to create balance of both the parent’s interest on the child.

Significance of Appropriate Child Custody

Both parents may want to win custody, but they might not always act in the child's best interest, making custody decisions emotionally and legally complex. Courts must consider various factors, including property division, lifestyle, decision-making rights, alimony, and child safety. A proper custody settlement is essential to:

• Define parental roles and responsibilities.

•  Allow both parents to exercise their rights.

• Designate one parent for major decisions.

• Establish visitation schedules.

Types of custodial rights over the child

The child custody is given keeping in mind of several arrangements keeping in mind about the child’s best interest court selects the custodial rights over the child. there are various types of child’s custody

1. Joint custody

when a child has joint physical custody, it provides the child to spend significant time with both the parents. In such case allows both the parents have equal custody of their child and spend meaningful time with each parent.

2. Physical custody

When a child is granted with physical custody, it means the sole responsibility of the minor will be given to one parent, while the other parent will visit and have periodic interaction with the child

3. Sole custody

If it is found that one parent is abusive, then by looking after the child’s interest, the child is removed from that situation. Thus, if the other parent is fit, the child will be left in his or her custody. Therefore, sole custody means only one parent will be given with child’s responsibilities keeping in mind the well -being of the child is protected.

4. Third-party custody

Neither biological parent is given or had custody of the child. A third person is given custody of the child.

These custody arrangements are thoughtfully designed to ensure the child’s needs are met.Until the court pronounces, the parent is given with the physical custody of the child.

Father’s custodial rights over his child

In Indian societies, mothers are often viewed as better nurturers than fathers. This perception can make it difficult for fathers to obtain custody of their children. A father seeking custody should remember that any potential allegations or accusations of abuse against him could jeopardize his chances, potentially resulting in the loss of visitation rights as well.

The following are the scenarios where a father can get a child’s custody

•  If the mother is willing to give up the custody of the child, the father may be granted custody

•  If the mother is found to be a morally questionable character, which might potentially harm the child in the future, then the father is granted custody

•  If the child is 13 years old or above and expresses a clear desire to live with his father, the court can grant accordingly.

•  If the father can justify that the mother is financially incapable of raising the child, which can hinder the child’s upbringing, with his own financial capability of raising the child

•  If the mother is not physically sound or incapable of adequately caring for the child, the custody is given to the father to ensure child’s welfare.

•  If the mother is convicted of a crime, then the child is transferred to the father.

Before granting custody of a child, the court considers both parents’ perspectives. Research shows that older boys often tend to choose their fathers, while older girls typically prefer their mothers. The court generally respects the wishes of children over the age of five.

Currently, courts are aiming to provide equal custody rights to both parents, moving away from traditional societal norms that favored one parent taking sole responsibility for the child. The goal is to create a balance that supports the child's emotional bond with both parents.

Cases where fathers have been given the child custody

1.Tejaswini Gaud vs Shekhar Jagdish Prasad Tewari on 6 May 2019 AIRONLINE 2019 SC 256

Zelam and Tejaswini Gaud married in 2006. In 2017, Zelam was diagnosed with cancer while Tejaswini was pregnant, and their daughter Shikha was born. After Zelam passed away in 2018, Tejaswini sought custody of Shikha, but her relatives refused. Zelam's relatives took care of Shikha during this time. Tejaswini filed a writ petition for custody, focusing on Shikha's welfare rather than just parental rights.

2. Jitender Arora & Ors vs Sukriti Arora & Ors on 17 February 2017 AIR 2017 SUPREME COURT 957

In this custody case, divorced parents were fighting for their 15-year-old daughter, Vaishali Arora. Both received divorce decrees in the UK and India. The mother initially got custody from the Punjab and Haryana High Court, but later, the Supreme Court upheld the father's custody after considering Vaishali's desire to live with him.

In Conclusion, In India, fathers do not automatically receive child custody after a divorce. The mother is still often viewed as the primary parent capable of providing a healthy upbringing for the child. When married couples divorce, the father must demonstrate specific qualities and capabilities to prove that he can raise his child well. Currently, the court system aims to recognize and uphold the rights of both parents regarding their child.