dear, your sister can surely get the divorce from her husband on the ground of cruelty. She can file a case of domestic violence under Domestic Violence Act or under Section 498A of IPC. You have not mentioned the age of the kids. But still, the custody goes to the natural guardian i.e. to a father or a mother depending on the age of the child. 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’. 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.
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’. As if to dispel any doubts on the matter the Court held ‘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'. 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’. 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’. 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.
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Regards
Isha Bhardwaj
Lawkonect.com
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