Published by: Madhav Goswami
College: GLA University, Mathura.
“A child cannot be tossed like a shuttle cock between the parents”.
-Justice R M Lodha and Rohinton Nariman
When a sacred institution i.e., a marriage dissolves and spouses got separate, the person who
suffers most is the child born out of such wedlock. Therefore, Indian Law in such cases
considers the “Welfare of Child” as the most important factor while deciding the transfer of the
custodial right of a minor child. Although, various statutory laws like Guardian and Wards act,
1890, Hindu Minority and Guardianship Act, 1956 etc., were enacted by the Parliament of
India in order to govern a uniform and stringent legislation in this regard. As we all know that
India is a country where people of diverse religion resides and as a consequence of the same
different personal laws and customs like Islamic Law, Parsi Law etc., were also passed to
govern the rules of guardianship respectively. On the other hand, the marriages inscribed under
“Special Marriages Act, 1954” also consists of different provisions regarding the custodial
rights of a minor child after the separation of both the spouse. Thus, “Interest and Welfare of
the child” born out of such marriage is cogitate as an issue of utmost importance by the Courts
The Custody of a child which takes place after the parents are separated is a very critical issue.
Various literatures in the form of books, movies, etc,. reflected the quantum of mental trauma
and stress that a child suffers while witnessing the process if his or her parents separation. Once
the period of Judicial Separation got complete and further divorce process evaporates the most
essential issue that comes before the Court is “Custody of Child”.
Custody of a child is the judicial or legal right given to the guardian appointed by the court to
look after that child (where the child is minor i.e., below 18 years of age). Such appointed
guardian can be the Natural Guardian or Testamentary Guardian. The Guardian to whom the
custodial right of minor is transferred looks after the betterment and maintenance of the child
with regard to various aspects like education, health, emotional, physical and mental
development respectively. Whereas the Second Guardian (in case of Natural Guardian)
possesses the “Right to Access” and meet the child time to time. The most important ground
that a court considers while granting the custodial right of such child is the “interest of child”.
Factors which contribute to the welfare of a child:-
The Family Courts in India while handing over the custodial right of a child makes best possible
attempt to ensure the safe and optimum future of such child. Generally, there are certain
grounds set by the hon’ble court in various matter which acts as a guided factor to the courts
while determining the custodial right of the child respectively and such grounds are listed
Better upbringing of the child;
Safety Issues like health, care etc;
The parent or legal guardian to whom the custody is given must be financially well.
Where the Parental Right over minor after the divorce comes into question: –
Where the custodial right of a minor child comes into existence, the Court grants both the
parents an equal right over such child after the completion of divorce proceedings. Moreover,
the final decision vests in the hands of Family Courts in this regard. Guardian and Ward Act,
1890 has been considered as a major piece of legislation by the Courts across the Country in
such cases respectively which is primarily equitable or secular in nature. But the provisions of
above-stated piece of legislation reflects a downright to the provisions of statutes involved in
personal laws simultaneously. The Final verdict lays upon the Family Courts in such scenario
as a balance or the situation of equilibrium is to be maintained between both the laws. The
Custodial Right of a minor child is transferred to one of the parent at a time after considering
all the factors mentioned in the initial phase of this article and the second guardian gets a “Right
to Equal Access” to the Child in order to stay in consistent touch with him or her.
Right to Access is considered a major right in the hand of second guardian as it acts as a medium
to keep a check on the parent whom the custodial right is given by the Court. The pre-requisites
as to the visiting and meeting rights are decided by the Family Courts only. This Provision
aims to strike out a common parlance between the right of both the parents over the child
Forms of Child Custody adopted in India: –
There are various forms of child custody adopted in India. Such forms of child custody are
enumerated as follows: –
(A) Physical Custody of Child;
(B) Joint Custody;
(C) Sole Custody;
(D) Third Party Custody.
The Custody of a child after divorce or mutual separation remains one of the delicate and
empathetic issue after the separation of parents. And it also remains one of the cause of major
mental trauma among the child. The regular fights between their parents witnessed by them is
one of the root cause of such mental disturbance among the children. The custody as a matter
of fact is guided by the certain legislation enacted by the Parliament or judicial precedents set
by the court of our country. But it has been in various studies that its not the parents who
suffered most after their separation rather it’s the child who becomes a spectator and main
victim of all this sufferings caused due to the separation of his or her parents.