kumarkumar (business) 23 April 2015
Dear learned lawyers,
I have a divorce case pending in family court, I have 3 years old girl child, my child is every thing to me. My wife has the possession of the child, how to apply for the possession of my child. How to approach court regarding this.
I cant live without my child.
Thanks,
A.Durai Pandi
saravanan s (legal advisor) 23 April 2015
till five years the custody of the child would be given to the mother only.
kumarkumar (business) 24 April 2015
My child looks exactly like me , physical features . My wife does not like me , so she is ill treating my child , my child not getting the love she supposed to get. My wife taking vengance on my child , as she is not was not able to take over me. she is beating my child.
please help.
Adv k . mahesh (advocate) 24 April 2015
in rarest and rarest cases only court will give custody of the child and in girl child cases very rare custody will be given
Advocate dishi (AM LEGAL) 24 April 2015
|
Custody Under Hindu Law:All the personal law matrimonial statutes make provisions for dealing with the issue of child custody. The provisions in the matrimonial Acts can, however, be invoked only when there are some proceedings pending under the Act. Hindus have an additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Apart from this, there is the Guardians and Wards Act 1890 (GWA). This is a secular law for appointment and declaration of guardians and allied matters, irrespective of caste, community or religion, though in certain matters, the court will give consideration to the personal law of the parties. The provisions of the HMGA (and other personal laws) and the GWA are complementary and not in derogation to each other, and the courts are obliged to read them together in a harmonious way. In determining the question of custody and guardianship, the paramount consideration is the welfare of the minor. The word `welfare' has to be taken in its widest sense, and must include the child's, moral as well as physical well-being, and also have regard to the ties of affection.''
The English and Indian decisions are replete with such statements that : (i) the children of tender years should be committed to the custody of the mother, (ii) older boys should be in the custody of the father, and (iii) older girls in the custody of the mother. But these are judicial statements of general nature and there is no hard. and fast rule. As to the children of tender years it is now a firmly established practice that mother. should have their custody since father cannot provide that maternal affection which are essential for their proper growth. It is also now ac for proper psychological development of children of tender years ma is indispensable.' The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that custody of a child upon the age of five should ordinarily be with the mother. Under other personal laws, though it is no such statutory provision, the Indian courts have consistently taken view. The following observation of Beaumont, CJ. represents the judicial knew ......if mother is a suitable person to take charge of the child quite impossible to find an adequate substitute for her for the child.'
In Re Kamal Rudra Das J. expressed the same view vividly thus:
But a mother who neglects the infant child as she does not want to sacrifice the type of life she leading can be deprived of custody. Custody to third persons. -Ordinarily, custody should be given to either of the parents. But where welfare so requires, custody may be given to a third person. In 'Baby v., Vijay' granting custody of two minor children to maternal grandfather, the court observed that even if the father was not found unfit, custody might be given to a third person in the welfare of the child.'
Custody Under Muslim Law:The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified. This right is known as right of hizanat and it can be enforced against the father or any other person. The mother's right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right''
'Son—''Among the Hanafis, it is an established rule that mother's right of hizanat over her son terminates on the latter's completing the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son till he is weaned. Among the Malikis the mother's right of hizanat over her son CONTINUES
Daughter- Among the hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mother's right of custody over her daughters continues till they are married. Under the Ithna Ashari law the mother is entitled to the custody of her daughters till they attain the age of 7. The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Mother cannot surrender her right to any person including her husband, the father of the child. Under the Shia school after the mother hizanat belongs to the father. In the absence of both the parents or on their being disqualified the grandfather is entitled to custody. Among the Malikis following FEMALES
When Right if Hizanat may be lost by Hazina or Hazin. All the schools of Muslim law agree that a hazina should be:i) of sound mindii) good moral character iii) living at such a place where there is no risk, morally or physically to the child iv) of such a age which would qualify her to bestow on the child the care it may need (not applicable to the mother)'
The Shia law is very categorical and lays down that a person who has ceased to be muslim is not entitled to the cutody of the child. Also hazina who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of hizanat. The cardinal principal of hizanat in muslim law is the “welfare of the child”. The rights of hizanat cannot be lost on ACCOUNT
De Facto Guardian:A de facto guardian is a concept under which past act results in present status and a de facto guardian is a self appointed guardian. Tayabji defines a de facto guardian as “an (unauthorized) person who as a matter of fact has the custody and care of the person and/or of his property.” A de facto guardian has no power of alienation of a minor's property and that such an alienation is void. He has no power to convey any right of interest in immovable property which the transfer can enforce against the minor. A partition of property effected by the de facto guardian is void and not binding on the minor. The period of limitation to set aside a transfer by the de facto guardian is 12 years.
Custody Under Christian Law:Christian law per se does not have any provision for custody but the issues are well solved by the Indian Divorce Act which is applicable to all of the religions of the country. The Indian Divorce Act, 1869 contains provisions relating to custody of children. Section 41 of the said Act provides with the powers to make orders as to custody of children in suit for separation. -In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the said Court.
In the CASE
In Halsbury's Laws of England, the Law is succinctly in the following terms:-428. Infant's welfare paramount. In any proceedings before any Court, concerning the custody or upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the APPLICATION of the income thereof, the Court must regard the welfare of the infant as the first and paramount consideration, and must not take into consideration, whether from any other point of view, the claim of the father, or any right at common law possessed by the father in respect of such custody, upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. This provision applies whether both parents are living or either or both is or are dead.
Even where the infant is a foreign national, the Court, while giving weight to the views of the foreign Court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the Courts of any other country."'
In the case of 'Rosy Jacob v. Jacob A. Chakrammakkal', this Court has observed:
Custody Under Parsi LawThe issue of custody is dealt with by the Guardians and Wards Act of 1890, under which it is a well-established principle that the welfare of the child is paramount - i.e., the most important thing considered by the Guardian Court when deciding custody.''
No matter what customs or personal law rules the parents' community or sect follows regarding custody, any parent who wants custody and does not presently have custody has to seek custody from the Guardian Court. In other words, there is never any automatic transfer of a child's custody to a particular parent.'
Factors Considered by the Courts when Granting Custody# The welfare of the minor is very broadly defined and includes many diverse factors, notably:# the age, s*x and religion of the minor: courts take into ACCOUNT the personal law of the father). Thewelfare of younger children is generally regarded as being in the mother's custody;# the character and capacity of the proposed guardian: courts usually reject baseless allegations against mothers; # the wishes, if any, of a deceased parent, for example specified in a will; # any existing or previous relations of the proposed guardian with the minor's property: courts do not look kindly on guardians seeking custody just in order to have control over the minor's property. But if, for example, the minor's property is shared with the mother and she is otherwise a suitable guardian, the court will regard the property relationship as an additional factor in the mother's favour. # the minor's preference if she/he is old enough to form an intelligent preference, usually accepted as about 9 years old. # whether siblings would be divided: courts prefer to keep children united and award custody of both to either the mother OR the father. # whether either/both parents have remarried and there are step-children: Although the mother's remarriage to someone who is not the children's CLOSE blood-relative often means the court will not grant her custody, this rule is not strictly followed. Although the father's remarriage usually denies him custody, sometimes the courts agree to grant him custody especially when the children's step-mother cannot or will not have her own children.# whether the parents live far apart: courts sometimes do not give the mother custody because she lives very far away from the father who is the ‘natural' guardian. But in 1994 an Uzbek woman living in Uzbekistan was given custody; the judge said modern transport had shortened distances and meant that the father could depart from his home in the morning and RETURN by evening.# the child's comfort, health, material, intellectual, moral and spiritual welfare: this very broad category includes the adequate and undisturbed education of the child.'
However, the mere fact that the mother is economically less secure than the father, or that she suffers from ill-health or a disability is not usually reason enough to deny her custody because maintenance is the father's responsibility irrespective of who holds custody. The mental and psychological development of the minor should not be upset by a reversal of the existing status quo: courts will take into account the likely impact of a change in guardians and the child's reaction to this change. |
|||
|
The author can be reached at: romit@legalserviceindia.com
More Articles: |
Advocate dishi (AM LEGAL) 24 April 2015
pls read the article There has been a flurry of activity on the personal law front in our country in the recent past. An amendment seeking to add ‘irretrievable’ breakdown of marriage as a ground for divorce to the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 is in the wings. There are also provisions on sharing matrimonial property and waiving the statutory cooling period before a legal dissolution of marriage. Doubtless, personal law reform is a necessity given that most of our laws are antiquated.
A parody of sorts is that the first move to grant divorce on the basis of irretrievable breakdown was initiated by the Law Commission of India in its 71 report more than three decades ago! In the background is the increased incidence of matrimonial breakdown, the Sample Registration System 2010 data finalised recently quotes figures in the range of around 9% for states like Tamil Nadu (1)). Although exact figures are difficult to obtain the factum of increase seems to be unequivocal; the annual number of divorce petitions in a city like Mumbai has doubled since the 1990s (2). A renowned legal scholar and lawyer in the Madras High Court, Geeta Ramaseshan believes that while ‘more divorce cases are coming to court but this does not mean marital discord did not exist earlier’ (3). Others take a contrarian view and a clinical psychologist attributes it to the ‘complete death of tolerance’ (4).
Be it as it may, my concern in this article is to draw attention to another emotional landmine- the issue of child custody. In my opinion, this continues to languish as a neglected corner of our jurisprudence. The flasshes of attention that are drawn to it are mired in sensationalism as the recent dispute regarding custody of two small Indian children in faraway Norway and its current chapter in Kolkata prove.
The laws governing child custody in India are the Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act 1956. The Hindu Minority and Guardianship Act states that the ‘natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property …. in the case of a boy or unmarried girl- the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother’(5). There are numerous connotations this can take, some of these are: that the law reflects our patriarchal social structure and that small children are always better off with the mother... Matters are also complicated by a legal process that does not view legal guardianship to be co- terminus with physical custody of a child.
Over a year ago I happened to meet a leading lawyer in a metropolitan South Indian city to plead my own petition for child custody. A very warm and affable person, she did her best to dissuade me from litigation: in her considered opinion, it was time to do other things such as focussing on a career since my chances of getting child custody were negligible. At best one could file for ‘visitation rights’ and given my modest financial resources she found it unconscionable to waste my money on futile or near futile litigation. At least, in operational times it therefore seems that mothers most often win custody battles in our country. This is not surprising because this is an international phenomenon. In the United Kingdom only 8% of fathers function as single parents (6). In Germany local laws give sole custody to the mother unless she consents to joint custody. In at least one case the European Court of Human Rights has ruled this provision overtly discriminatory (7); this has led to German law makers taking a re- look at their child custody provisions.
The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute’ (8). As if to dispel any doubts on the matter the Court held (vide supra) ‘no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor’. In a landmark judgement the SC driving home the equality of the mother to fulfil the role of a guardian held that ‘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 ‘(9). To the lay person, this was akin to the highest Court in the country saying gender was not a consideration in deciding matters of child custody and guardianship. It was not to be, the Karnataka High Court held several years later that ‘it is the most natural thing for any child to grow up in the company of one’s mother’ and ‘a child gets the best protection and education only through the mother even in nature’ (10). Again it was the sagacity of the Supreme Court hearing an appeal in the same matter which held that ‘we make it clear that we do not subscribe to the general observations and comments made by the High Court in favour of mother as parent to be always preferable to the father to retain custody of the child’ (11). Despite the over- arching observations of the Supreme Court in the matter of child custody it is thus, often, the subjectivity of an individual judge which decides a case of child custody.
A now popular talk show claims that more than 50% of women (which it claims is a conservative estimate) in our country are victims of domestic violence. An enormous amount of media time was spent on the tragedy of Baby Falak, a battered baby. More topically the horrendous rape and subsequent death of another young woman in Delhi was, for days on end the talk of the town. Concurrent with their anxiety to make their coverage of these tragedies an index of their social conscientiousness, news channels spared no attempt at bashing the prototypical Indian male- lawless, abusive, selfish, greedy, insensitive to the plight of women and children and so and so forth. It is unquestionable that violence against women, the solicitation of dowry and the neglect of children are social crimes, that these are prevalent enough to need special attention is also not in doubt. The problem arises when societal prototyping potentially prejudices the delivery of justice. With the phenomenal impact that visual and increasingly social media have on public opinion can we expect fairly that legislation or jurisprudence will be immune?
As early as 1980 the Law Commission of India submitted a report to the Government of India advising it to amend the Guardians and Wards Act 1890, it suggested that Section 6 of the Act (vide supra) be amended so as ‘ to allow the mother the custody of a minor till it completes the age of 12 years’. In its infinite wisdom this was necessary to prevent the father from ‘using the child as a pawn for securing complete submission of his wife’. Fast forward to 2010 where the SC heard an applicant father who was denied visitation rights for a little more than three years, an order of the Supreme Court notwithstanding. In this case the Court opined that the petitioner’s rights stood ‘completely frustrated’ and that the ‘mind of the child has been influenced to such an extent that he has no affection/ respect for the applicant’ (13). It also minced no words in holding that the respondent had ‘wilfully and deliberately’ committed ‘contempt of this court’. Women therefore are not above ‘using the child as a pawn’.
It does therefore appear that when a marriage fails either party, male or female uses the child to browbeat the opposite partner into submission. In the emotional battle of parents the child is often held hostage by whosoever has physical custody. India urgently needs legislative and judicial action to prevent either parent from alienating the child from the estranged partner. An interim measure can always be that a parent who deliberately alienates the child from the other has his or her rights for custody weakened; the underlying assumption always being that it is never healthy for a child to be denied the love and guidance of a biological parent. It is also moot to point out that the absence of these measures inevitably strengthens inter- parental international child abduction since India is not a signatory to the United Nations Convention on the Rights of the Child.
Let us also briefly look at another area of family law jurisprudence- the laws governing prohibition of dowry and domestic violence. It is nobody’s case that these are not social problems in this country. Implementation of the statute has been vitiated to such an extent that the SC held that ‘as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and filed with obligue motive (sic)’ (14). While solicitation of dowry and any violence is indeed reprehensible (and must be met with the full force of the State) is it not shocking that such stringent laws are misused by women and their families? More cogently when will our society mature enough to view goodness or wickedness as part of our innate human nature, not necessarily endowments of our s*x?
It is unfair that women will or should give up their careers to stay at home with toddler children it is equally unfair that men should be disqualified on the basis of statute. The need of the hour is a gender neutral custody law; there is however no way to second guess which way our custody laws are headed.
Within the realm of judicial intervention I would earnestly plead that our higher judiciary enunciate a specific set of guidelines on the matter. In the absence of these child custody matters essentially rest on the discretion of an individual judge, who drawn from our society is not always free from one or other stereotypes.
REFERENCES
Tamil Nadu has the highest percentage of widowed/ divorcees in India. The Times of India 05 April 2012.
With India’s new affluence comes the divorce generation. The New York Times 19 Feb 2008.
Why is the divorce rate climbing up? The Hindu 23 Sep 2002.
For space, young couples snap the knot in no time. The Times of India 15 Dec 2010.
Section 6 (a) -The Hindu Minority and Guardianship Act 1956.
Divorced fathers to get more contact with their children. The Guardian Feb 3 2012.
Advocate dishi (AM LEGAL) 24 April 2015
If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access. Custody of a child, when parents divorce, only implies as to who the child will physically reside with. Both parents continue to be natural guardians.
The custodial parent will be the primary caretaker responsible for the emotional, medical and educational needs of the child and the non-custodial parent who does not lose the rights over the child will have the right of access.
Over the years, there is a shift from custody and access being the 'right of a parent' to being the 'right of a child'. The non-negotiable principle on which custody is decided is the 'best interest and welfare of the child'. Who will best serve the child's emotional, educational, social and medical needs is the only criteria.
The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does. A non-earning mother will not be disqualified but the earning father will be asked to provide child support. While the mother is the preferred custodial parent when the child is of a tender age, once the child attains a discernible age, his/her wishes will be considered while deciding theissue of custody and access .
The belief that once a child attains a particular age, the father shall have uncontested right is misplaced and wrong.
This principle of best interest of the child ought to also apply in case of mutual divorce. Who will the child stay with, what will be the terms of access, how will the child's living and educational costs be met?
Parties have larger negotiating space where more innovative terms can be evolved; like joint custody, a concept that does not exist in statutes but has evolved while negotiating divorce settlements. In this, both parents will have legal custody but one will have the physical custody and be the primary caretaker.
Access to the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just day access or overnight access with gradual increase including weekend and/or vacation, access on special days, etc. It could also be free access with no fixed schedule, but as per the parents and the child's convenience, could include the non-custodial parent's right to school events, etc.
One ought to remember that as a parent every 'right' you exercise ought to also have a corresponding 'duty' towards the child. As important as the right to custody or access is, so is the duty to provide for and maintain the child. The parties can agree to a one-time lump-sum amount or a staggered payment either at different stages of the child's educational life or a monthly amount with incremental increase. Whatever it be, it ought to be sufficient for the day-to-day expenses of the child to maintain or improve the standard of living.
Property in the name of the child with either parent as the guardian can also be given as a lump sum with the rent from the property used for monthly maintenance expenses. INVESTMENTS which could yield a larger return at a later point such as insurance and educational policies could also be factored in. Provisions for unforeseen situations such as medical emergency should also be considered.
A misgiving that the money set aside for the child could be misused by the custodial parent or that the non-custodial parent could abuse the terms of access alone should not prevent an amicable settlement.
The court is parens patriae, the ultimate guardian of the child and her/his property and so minor's property/income is amply protected by law and terms of custody, access and child support can be altered in changed circumstances and/or in the interest of the child. It has to be 'the best interest of the child'.
Veena Gowda
Women's Rights Lawyer
Adv. Chandrasekhar (Advocate) 24 April 2015
First file a GWA case and in that file for visitation rights. Within 3 to 4 months you will get visitation rights. By the time when the case comes to conclusion, the child will attain more than 5 years. Hence, no problem. But do not put such allegations that your wife is beating the child as it resembles you. The courts will not buy such arguments.
kumarkumar (business) 24 April 2015
Sir,
court can find this when they look at my girl child and me, both look same, appearence looks are
same.
Thanks
A.Durai Pandi
© 2024 LAWyersclubindia.com. Let us grow stronger by mutual exchange of knowledge.
