The Ultimate Sufferer: CHILD

Child Custody
Guardianship and custody
Legal Provisions
The best interest of the child
Child Born out of the Live in Relationship
Conclusion

Child Custody.

It is 21st Centaury where people having different perspective, with different

culture and religion ,sometimes from different countries live together fall in love
and get married but some of them do not end up together for very long time and
on the basis of mutuality or otherwise get divorced or decides to live separately .

Question as to the custody of a child arises only when he/she is minor governed
by the Indian Majority Act 1875.A child born out of such pious relationship suffers
the disagreement between his parents and at this point of time it becomes very
important to protect the emotional and physical wellbeing of the child. In such
situation the court having jurisdiction acts as the Parens Patriae i.e., the protector
of the interest of that child who himself cannot take the decision to explore all
areas and to ensure that all benefit reach to the child at large.

Custody means controlling and guiding the physical act of someone, taking care of
the interest of that person. In other words child custody means taking care of the
presence of the child ,fulfillment of the needs and rights of the child. To decide
who among the divorced parents or the separated parents will give this
protection has to be decided by the court having jurisdiction.

Parties being the mother or father of that child, out of love and affection always
want their child to live with them .Sometimes the parties living in relationship
with the different person not being the mother or father of that child still want
the custody of the child .These facts only helps the court in corroboration
whether a child will be living with all comfort and insecurity if the other person is
not his/her mother or father.

Guardianship and custody.

There is subtle distinction between Custody and Guardianship. The concept of

custody is related to the physical control over a person or property. The concept
of guardianship is akin to trusteeship; a guardian is trustee in relation to the
person of him he is so appointed. The position of a guardian is more honorous
than of a mere custodian, the custody may be for a short duration and for a
specific purpose. There can be different kinds of guardian as Natural guardian,
Testamentary guardian, De jure guardian and De Facto guardian but in case of
custody there no such distinction. There can be situations where a custodian and
a guardian are two different person .Section 6 of Hindu Minority and
Guardianship Act provides the Father to be the Natural Guardian of a child and his
absence then only a mother can become the guardian but if the child is under 5
years of age the custody to be given to her only irrespective of the father being
the guardian of such child.

Legal Provisions.

Indian courts respect the decisions of the parties of not continuing living together
thus always try to balance the rights of the couple and the right of the child to be
protected and brought up by the parents.

There are personal laws dealing with the custody of the child such as Hindu
Minority and Guardianship Act 1956 and Shariat Law on the other hand the
Guardianship and Wards Act 1890 providing a uniform act for all.

Section 26 of the Hindu Marriage Act 1955 governs the custody of a child during
the divorce proceedings or the proceedings under HMA 1955, it is an interim
order subject to the modification .In case of Mausami Moitra Ganghli vs Jayani
Ganghli 2008 SC in Para 14 the court observed that It is trite that while
determining the question as to which parent the care and control of a child
should be committed, the first and the paramount consideration is the welfare
and interest of the child and not the rights of the parents under a statute.
Indubitably the provisions of law pertaining to the custody of a child contained in
either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority
and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a
predominant consideration. In fact, no statute, on the subject, can ignore, eschew
or obliterate the vital factor of the welfare of the [Link] is, no doubt, true that
father is presumed by the statutes to be better suited to look after the welfare of
the child, being normally the working member and head of the family, yet in each
case the Court has to see primarily to the welfare of the child in determining the
or their love for the child may be one of the relevant considerations but cannot be
the sole determining factor for the custody of the child. It is here that a heavy
duty is cast on the Court to exercise its judicial discretion judiciously in the
background of all the relevant facts and circumstances, bearing in mind the
welfare of the child as the paramount consideration.

Under Muslim law Despite the fact that the mother is not the child's natural
guardian ,she has a claim to custody of the child until the child reaches a certain
age. It is often referred as Hizanat which connotes the right of a mother over her
[Link] Hanafi law only a mother has the custody rights of girl till she
attains puberty and of a male child till he is 7 years of [Link] custody
continues even after the Talaq but if the woman remarries the custody of
the child is given to the father except in the cases where father has become
old,is lunatic or idiot.

The Best Interest of the Child`

The children are not mere chattels; nor are they mere play-things for their parents.
Absolute right of parents over the destinies and the lives of their children has, in the
modern changed social conditions, yielded to the considerations of their welfare as human
beings so that they may grow up in a normal balanced manner to be useful members of the
society and the court in case of a dispute between the mother and the father, is expected
to strike a just and proper balance between the requirements of welfare of the minor
children and the rights of their respective parents over them. Where in any proceedings
before any court, the custody or upbringing of a minor is in question, the court, in deciding
that question, must regard the welfare of the minor as the first and paramount
consideration, and must not take into consideration whether from any other point of view
the claim of the father in respect of such custody or upbringing is superior to that of the
mother, or the claim of the mother is superior to that of the father. In relation to the
custody or upbringing of a minor, a mother has the same rights and authority as the law
allows to a father, and the rights and authority of mother and father are equal and are
exercisable by either without the other.

The Convention n Rights of the Child,1989 and Juvenile Justice (Care and Protection of
Children) act,2000 defines the term best Interest of child as the basis taken regarding the
child to ensure fulfillment of his basic rights and needs, providing identity ,social wellbeing
and physical ,emotional and intellectual development.

Child Born out of the Live in Relationship

A child born out of live in relationship, void or voidable marriage is not at fault it’s not him
who has decided to come in the world .The court does not distinction between a child born
out of valid marriage and a child born out of void or voidable marriage, the child falling
under the latter category is entitled to the same rights as of a child of valid marriage.
Section 16 of Hindu Marriage Act 1955 provides that notwithstanding that the marriage was
null and void under section 11 , any child of such marriage who would have been legitimate
if the marriage had been valid ,shall be legitimate. This provision intends to bring about the
social reforms and conferment of social status of legitimacy of innocent child.

Thus the Custody of the child will be dealt in same manner as if the child was born in valid
marriage. In case of Balsubramanyam vs Surthayan 1992 SC the court held the status of a
child born out of living relationship is to be legitimate, if the couple live under the same roof
and cohabit for considerable years there will be a presumption of marriage. In another case
Indra Sarma vs V.K.V Sarma 2013 SC the court relied on the definition of the Domestic
Relationship under Protection of Women from Domestic Violence Act 2005.

Thus it is cognizant that custody rights of a child will be always considered to protect the
welfare of the child in another case where the parties are not governed by The Hindu
Marriage act 1955 or The Hindu Minority and Guardianship Act 1956 will be governed by
the uniform law i.e., Guardian and Wards Act 1890.
Conclusion
Law is very dynamic it does mold itself according to the society .The Indian constitution is the
grundnorm of all the laws, even if the personal laws do not allow something and is not
according to the basic structure of the constitution it would be held void to the extent it is
inconsistent with the provisions of the Fundamental Rights.

Article 14,19 and 21 were held to be the Golden Triangle in the constitution in case of Maneka
Gandhi Vs Union of India providing basic human rights to any person .A child whether born out
of valid marriage or otherwise is entitled to a dignified life .He being not competent to decide
his own interest in best way is protected by the Indian Courts acting as the father of the country
that is parens patriae. Whenever there is any injustice Indian courts have played very vital role
and tried to protect the best interest of the people who are unable to take any decisions for
themselves in very balanced way .

Name : Alisha Idrisi

Roll No: 236038

Exam Roll no : 21310806035