JUDICIAL FRAMEWORK FOR DETERMINING CHILD CUSTODY IN INDIA

Introduction-
A divorce is not merely a revocation of marriage. It brings with itself far-reaching emotional implications. And the implications are even intensified where the custody of a child is in question post the separation. This situation places a critical responsibility upon the judiciary to determine the custody of the child. The most common approach is to decide the matter in the best interest of the child.
A child is a person who has not attained the age of 18 as per the Indian Majority Act 1875. Children who witness the separation of their parents are emotionally vulnerable, and due care must be taken by the courts to determine what is best for the child. And several factors come into play while determining the best interest of the child. This article discusses the process and factors upon which the custody of a child is decided.

Definition and Legal Provisions-
In common parlance, child custody is a right or responsibility of a parent to care and control for a minor child. Legally, this word connotes a twofold right that encompasses both physical custody (living with the child) and legal custody (right to make decisions regarding the well-being of the child).
The different types of custody include-

a. Joint Custody- Where both parents share the custody of the child.
b. Physical Custody- Where usually one parent gets the custody while the other gets visitation rights.
c. Third Party custody- Though not inasmuch prevalent in India, this means to give the custody of the child to a third party and not a parent in exceptional cases.

In India, child custody is determined by the following legislations-
• Guardians and Wards Act 1890-
1. This is the most uniformly applicable act in India owing to its secular nature. The court has the power to order custody as defined in section 17 of the Act, andminor welfare is of paramount importance while doing so. This act empowers the court to appoint a guardian for a minor for their person or property, or both.
2. The general process includes filing an application as prescribed under section 10 of the said act, before the court of relevant jurisdiction by the person claiming to be the guardian of the child. Then the court examines the application and makes the decision.
3. The factors that are considered while determining custody under this act are- age, sex, ordinary residence of the minor, religion, capacity of the guardian, nearness of his kin to the minor etc.

• Hindu Minority and Guardianship Act, 1956-
1. This act applies only to Hindus (including Sikhs, Buddhists, Jains).
2. The relevant considerations under this act are as follows-
a. Section 6 enumerates that the natural guardian in case of minor boy, or a minor unmarried girl is the father and after him, the mother.
b. This act also enumerates that the custody of a child below 5 years of age is given to the mothers since they are the primary caregivers.
c. In case of a minor illegitimate boy or minor illegitimate unmarried girl, the custody is given to the mother and after her the father is preferred.
d. In case of a married minor girl, her husband.
e. A person is not entitled to be a guardian in case they become a hermit, or they cease to be a Hindu.
3. A paramount importance is given to minor welfare under this act as well, which is enumerated under section 13.

• Muslim Law-
1. Custody under Muslim law is mostly is a customary practice since it is not codified.Ordinarily, the mother gets custody of a boy until 7 years of age and girl till she has attained puberty under the Sunni law, and boy till the age of 2 and girls until age 7 under the Shia law.
2. Custody is commonly called Hidanat, while guardianship is called wilayat. Whereas custody is associated with the physical possession and responsibility, while guardianship is associated with care of the person or property of the minor and can also be appointed by the state under the Guardians and Wards Act of 1890.
3. There are three types of guardianship under Muslim law-
a. Wilayat-e-nafs- which is guardianship or custody of the person
b. Wilayat-e-mal- which means custody of the property of a minor
c. Wilayat-e- Nikah- which is the guardianship by virtue of marriage.

The Principle of Minor Welfare-
The most important factor that drives the courts to decide in matters of custody is the principle of minor welfare.
1. In the case of Devika Mehra v. Prashant Prakash Sahni, (2021) 3 HCC (Del) 428 it was held by the Hon’ble court that paramount consideration is given to the welfare of the child in deciding the custody. It is the child’s desire coupled with the availability of a conducive and appropriate environment for their proper upbringing, which the only crucial consideration that guides the court. The rights of the parents are considered secondary to the interest of the minor. The court also take into consideration the age and desires of the child, that if the child is prudent enough to form.
2. In Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, the Hon’ble Supreme Court affirmed that weightage is also given to the child’s ordinary contentment, health, education, intellectual development, favorable surroundings and most importantly physical comfort.
3. Other determinative factors also include the age, sex, religion, ordinary place of residence, the child’s emotional attachment etc.

Conclusion-
Thus, the most important and crucial factor that the Indian judiciary considers while deciding the custody of a child is the interests of the minor. It is both the duty and responsibility of the courts to ensure that the comfort of the child supersedes the statutory rights of the parents.