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Home » Law Made Easy » Custody Of Children

Custody of Children
by Tejaswi Pandit †
Assisted by Manovi Mittra†

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Published on November 25, 2019 – By Devika

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[Disclaimer: This note is for general information only. It is NOT

to be substituted for legal advice or taken as legal advice. The
publishers of the blog shall not be liable for any act or
omission based on this note]
Introduction
The law governing custody of children is closely linked with
that of guardianship. Guardianship refers to a bundle of rights
and powers that an adult has in relation to the person and
property of a minor, while custody is a narrower concept
relating to the upbringing and day-to-day care and control of
the minor. The term “custody” is not defined in any Indian
family law, whether secular or religious.[1]
Statutory Law
(i) Guardians and Wards Act, 1890: This Act is a secular law
regulating questions of guardianship and custody for all
children within the territory of India, irrespective of their
religion.[2]
(ii) Hindu Law: It is to be noted that the following two Acts
discussed under “Hindu Law” are applicable to any person
who is a Hindu, Buddhist, Jaina or Sikh by religion[3].
(a) Hindu Minority and Guardianship Act, 1956: Classical
Hindu law did not contain principles dealing with guardianship
and custody of children.[4] However, in modern statutory
Hindu law, the Hindu Minority and Guardianship Act provides
various provisions concerning the matters of guardianship
and custody of minor Hindu children.[5]
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(b) Hindu Marriage Act, 1955: Section 26 of the Hindu

Marriage ActWe'd like to show
authorises courtsyou notifications
to pass interim for the latest
orders in any
proceeding news
underandthe
updates.
Act, with respect to custody,
maintenance and education of minor children, in consonance
with their wishes. The Section also authorises courts to
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revoke, suspend or vary such interim orders passed
previously.[6]
(iii) Islamic Law: In Islamic law, the father is the natural
guardian, but custody vests with the mother until the son
reaches the age of seven and the daughter reaches puberty.
[7] The concept of Hizanat provides that, of all persons, the
mother is the most suited to have the custody of her children
up to a certain age, both during the marriage and after its
dissolution. A mother cannot be deprived of this right unless
she is disqualified because of apostasy or misconduct and
her custody is found to be unfavorable to the welfare of the
child.[8]
(iv) Parsi and Christian Law: Under Section 49 of the Parsi
Marriage and Divorce Act, 1936 and Section 41 of the Divorce
Act, 1869, courts are authorised to issue interim orders for
custody, maintenance and education of minor children in any
proceeding under these Acts.[9]
(v) Marriages registered under Special Marriage Act, 1954:
This Act provides for a special form of marriage which can be
taken advantage of by any person in India and by all Indian
nationals in foreign countries irrespective of the faith which
either party to the marriage may profess. Couples who
register their marriage under Special Marriage Act can take
resort to Section 38 of the Act for the purposes of custody of
children. Section 38 empowers the district court to pass
interim orders during pendency of proceedings and make
such provisions in the decree as it may seem to it to be just
and proper with respect to the custody, maintenance and
education of minor children, consistently with their wishes
wherever possible.
The paramount consideration
While taking a decision regarding custody or other issues
pertaining to a child, “welfare of the child” is of paramount
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consideration, Sheoli Hati v. Somnath Das, (2019) 7 SCC

490. We'd like to show you notifications for the latest
news and updates.
It is not the welfare of the father, nor the welfare of the
mother, that is the paramount consideration for the court. It is
the welfare of the minor and of the minor alone which is the
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paramount consideration, Saraswatibai Shripad
Vad v. Shripad Vasanji Vad, 1940 SCC OnLine Bom 77.
Principles in relation to custody of child
An order of custody of minor children either under the
provisions of the Guardians and Wards Act, 1890 or the Hindu
Minority and Guardianship Act, 1956 is required to be made
by the court treating the interest and welfare of the minor to
be of paramount importance. It is not the better right of either
parent that would require adjudication while deciding their
entitlement to custody. The desire of the child coupled with
the availability of a conducive and appropriate environment
for proper upbringing together with the ability and means of
the parent concerned to take care of the child are some of
the relevant factors that have to be taken into account by
the court while deciding the issue of custody of a minor, Gaytri
Bajaj v. Jiten Bhalla, (2012) 12 SCC 471 .
Object and purpose of the Guardians and Wards Act, 1890
is not merely physical custody of the minor but due protection
of the rights of ward’s health, maintenance and education. In
considering the question of welfare of minor, due regard has,
of course, to be given to the right of the father as natural
guardian but if the custody of the father cannot promote the
welfare of the children, he may be refused such guardianship,
Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.
Children are not mere chattels nor are they toys for their
parents. Absolute right of parents over the destinies and
the lives of their children, in the modern changed social
conditions must yield 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 guardian
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
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their respective parents over them, Gaurav Nagpal v.

We'd like
Sumedha Nagpal, to show
(2009) you
1 SCC 42notifications
. for the latest
news and updates.
Better financial resources of either of the parents or their
love for the child may be one of the relevant considerations
but cannot be the sole determining factor for the custody of
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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, Mausami
Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673.
The word “welfare” used in Section 13 of the Hindu Minority
and Guardianship Act, 1956 has to be construed literally and
must be taken in its widest sense. The moral and ethical
welfare of the child must also weigh with the court as well as
its physical well-being. Though the provisions of the special
statutes which govern the rights of the parents or guardians
may be taken into consideration, there is nothing which can
stand in the way of the court exercising its parens
patriae jurisdiction arising in such cases, Gaurav Nagpal v.
Sumedha Nagpal, (2009) 1 SCC 42.
Section 6 of the Hindu Minority and Guardianship Act, 1956
constitutes the father as the natural guardian of a minor son.
But that provision cannot supersede the paramount
consideration as to what is conducive to the welfare of the
minor, Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984)
3 SCC 698.
Even an interim order of custody in favour of the parent
should not insulate the minor from the parental touch and
influence of the other parent which is so very important for the
healthy growth of the minor and the development of his
personality, Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC
479.
Before deciding the issue as to whether the custody should
be given to the mother or the father or partially to one and
partially to the other, the High Court must (a) take into
account the wishes of the child concerned, and (b) assess the
psychological impact, if any, on the change in custody after
obtaining the opinion of a child psychiatrist or a child welfare
worker. All this must beNAVIGATION
done in addition to ascertaining the
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comparative material welfare that the child/children may

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452.
The principles laid down in proceedings under the Guardians
and Wards Act, 1890 are equally applicable
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the custody of a child under Section 26 of the Hindu Marriage
Act, 1955, since in both the situations two things are common:
the first, being orders relating to custody of a growing child
and secondly, the paramount consideration of the welfare of
the child. Such considerations are never static nor can they
be squeezed in a straitjacket. Therefore, each case has to be
dealt with on the basis of its peculiar facts, Vikram Vir Vohra v.
Shalini Bhalla, (2010) 4 SCC 409.
It is not the “negative test” that the father is not “unfit” or
disqualified to have custody of his son/daughter that is
relevant, but the “positive test” that such custody would be
in the welfare of the minor which is material and it is on that
basis that the court should exercise the power to grant or
refuse custody of a minor in favour of the father, the mother or
any other guardian, Nil Ratan Kundu v. Abhijit Kundu, (2008)
9 SCC 413.
Twin objectives of the “welfare principle”
The welfare principle is aimed at serving twin objectives. In
the first instance, it is to ensure that the child grows and
develops in the best environment. The best interest of the
child has been placed at the vanguard of family/custody
disputes according to the optimal growth and development of
the child and has primacy over other considerations. This
right of the child is also based on individual dignity. The
second justification behind the welfare principle is the public
interest that stands served with the optimal growth of the
children. Child-centric human rights jurisprudence that has
been evolved over a period of time is founded on the principle
that public good demands proper growth of the child, who are
the future of the nation, Vivek Singh v. Romani Singh, (2017)
3 SCC 231.
Considerations governing grant of custody*
A court while dealing with custody cases, is neither bound by
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statutes nor by strict rules of evidence or procedure nor by
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precedents. The court has to give due weight to a child’s

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above physical comforts, moral and ethical values cannot be
ignored. They are equally, or even more important, essential
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and indispensable considerations. If the minor is old enough
to form an intelligent preference or judgment, the court must
consider such preference as well, though the final decision
should rest with the court as to what is conducive to the
welfare of the minor, Nil Ratan Kundu v. Abhijit Kundu, (2008)
9 SCC 413.
The welfare of the child shall include various factors like
ethical upbringing, economic well being of the guardian,
child’s ordinary comfort, contentment, health, education, etc.,
Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7
SCC 42.
The crucial factors which have to be kept in mind by the
courts for gauging the welfare of the children and equally for
the parents can be, inter alia, delineated, such as (1) maturity
and judgment; (2) mental stability; (3) ability to provide access
to schools; (4) moral character; (5) ability to provide
continuing involvement in the community; (6) financial
sufficiency and last but not the least the factors involving
relationship with the child, as opposed to characteristics of the
parent as an individual, Lahari Sakhamuri v. Sobhan Kodali,
(2019) 7 SCC 311.
Issues common to all child custody disputes are: (a) continuity
and quality of attachments, (b) preference, (c) parental
alienation, (d) special needs of children, (e) education, (f)
gender issues, (g) sibling relationships, (h) parents’ physical
and mental health, (i) parents’ work schedules, (j) parents’
finances, (k) styles of parenting and discipline, (l) conflict
resolution, (n) social support systems, (o) cultural and ethnic
issues, (p) ethics and values and religion.[10] Though the
prevailing legal test is that of the ‘best interests of the child’,
the Courts have also postulated the “least detrimental
alternative” as an alternative judicial presumption, J.
Selvan v. N. Punidha, 2007 SCC OnLine Mad 636.
Nature of custody orders
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In a matter relating to the custody of a child, the Court must

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the nature of care and affection that a child
requires in the growing stages of his or her life. That is why
custody orders are always considered interlocutory orders
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and by the nature of such proceedings, custody orders cannot
be made rigid and final. They are capable of being altered
and moulded keeping in mind the needs of the child, Vikram
Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409.
Guardianship or custody orders never attain permanence or
finality and can be questioned at any time, by any person
genuinely concerned for the minor child, if the child’s welfare
is in peril, ABC v. State (NCT of Delhi), (2015) 10 SCC 1.
Estoppel not applicable to custody orders
Orders relating to custody of wards even when based on
consent are liable to be varied by the court, if the welfare of
the wards demands variation. Estoppel is not applicable to
such orders, Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1
SCC 840.
Where to file an application for custody of a child
Section 9 of the Guardians and Wards Act, 1890 makes a
specific provision as regards the jurisdiction of the court to
entertain a claim for grant of custody of a minor. The solitary
test for determining the jurisdiction of the court under Section
9 is the “ordinary residence” of the minor. The expression
used is “where the minor ordinarily resides”**. Now whether
the minor is ordinarily residing at a given place is primarily a
question of intention which in turn is a question of fact. It may
at best be a mixed question of law and fact, but unless the
jurisdictional facts are admitted it can never be a pure
question of law, capable of being answered without an inquiry
into the factual aspects of the controversy, Ruchi Majoo v.
Sanjeev Majoo, (2011) 6 SCC 479 .
Interim custody / Temporary custody
Section 12 of the Guardians and Wards Act, 1890, empowers
the Court to make orders for temporary custody and
protection of the person or property of the minor.

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While deciding the question of interim custody, the court must

be guided byWe'd
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empowers thenews andtoupdates.
court make any order as it deems proper.
The factors that must be kept in mind while determining the
question of guardianship will apply with equal force to the
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question of interim custody. The strict parameters governing
an interim injunction do not have full play in matters of
custody, Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC
654.
Examination of the child is important
Examination by the court of the child in order to ascertain his
wish as to with whom he wants to stay is important and
desirable. Apart from the statutory provision in the form of
sub-section (3) of Section 17 of the Guardians and Wards Act,
1890, such examination also helps the court in performing
onerous duty, in exercising discretionary jurisdiction and in
deciding the delicate issue of custody of a tender-aged child,
Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 .
Constructive custody
The word “custody” as used in Section 25 of the Guardians
and Wards Act, 1890, ought to be held to include both actual
and constructive custody. It was admitted that this
interpretation could only be arrived at by some straining of the
language but it was considered that it was justified because it
would serve to carry out the intention of the Legislature in
framing the Act, Mushaf Husain v. Mohd. Jawad, 1918 SCC
OnLine Oudh JC 22.
Hindu Minority and Guardianship Act is in addition to the
Guardian and Wards Act
Where no specific remedy is provided under the Hindu
Minority and Guardianship Act, 1956, Section 2 and Section
5(b) of the Act makes the provisions of the Guardians and
Wards Act applicable to such a case. Section 2 makes it clear
that the Hindu Minority and Guardianship Act, 1956 is in
addition to the Guardians and Wards Act, 1890, N. Palanisami
v. A. Palaniswamy, 1998 SCC OnLine Mad 305.
Natural Guardian

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Section 6 of the Hindu Minority and Guardianship Act, 1956,

provides whoWe'd likenatural
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It enlists the natural guardian to be as:
(a) In the case of a boy or an unmarried girl — the father, and
after him, the mother:
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Provided that the custody of a minor who has not completed
the age of five years shall ordinarily be with the mother.
(b) In the case of an illegitimate boy or an illegitimate
unmarried girl — the mother, and after her, the father.
(c) In the case of a married girl — the husband:
However, it is to be remembered that in this section, the
expressions “father” and “mother” do not include a stepfather
and a stepmother.
Section 6(c) of the Hindu Minority and Guardianship Act
stands impliedly repealed by the Prohibition of Child Marriage
Act, 2006. Therefore, an adult male who marries a female
child in violation of Section 3 of the Prohibition of Child
Marriage Act shall not become the natural guardian of the
female child, T. Sivakumar v. State of T.N., 2011 SCC OnLine
Mad 1722.
Section 7 of the Hindu Minority and Guardianship Act, 1956,
provides that natural guardianship of the adopted son who is
a minor passes, on adoption, to the adoptive father and after
him to the adoptive mother.
Custody of a Hindu child aged below 5 years
The Hindu Minority and Guardianship Act postulates that the
custody of an infant or a tender-aged child should be given to
his/her mother unless the father discloses cogent reasons
that are indicative of and presage the likelihood of the welfare
and interest of the child being undermined or jeopardised if
the custody is retained by the mother. However, it is
immediately clarified that Section 6(a) or for that matter any
other provision including those contained in the Guardians
and Wards Act, does not disqualify the mother to custody of
the child even after the latter’s crossing the age of five years,
Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 .
Custody of children born outside wedlock (illegitimate
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The preponderant position is that it is the unwed mother who

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that the father is not conferred with
an equal position merely by virtue of his having fathered the
child, ABC v. State (NCT of Delhi), (2015) 10 SCC 1.
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The subtle difference between “custody” and
“guardianship”
The appointment of a guardian and the custody of minors are
two different aspects. There is a subtle distinction between
the expression “Custody” and “Guardianship”. The concept of
custody is related to physical control over a person or
property. The concept of guardianship is akin to trusteeship. A
guardian is a trustee in relation to the person of whom he is
so appointed. The position of a guardian is more onerous
than of a mere custodian. The custody maybe for short
duration and for a specific purpose, Ramesh Tukaram
Gadhwe v. Sumanbai Wamanrao Gondkar, 2007 SCC OnLine
Bom 975.
The question of guardianship can be independent of and
distinct from that of custody in the facts and circumstances of
each case. As far as matters of custody are concerned, the
court is not bound by the bar envisaged under Section 19 of
the Guardians and Wards Act, 1890, Athar Hussain v. Syed
Siraj Ahmed, (2010) 2 SCC 654.
Writ of habeas corpus for restoration of custody
In child custody matters, the writ of habeas corpus is
maintainable where it is proved that the detention of a minor
child by a parent or others was illegal and without any
authority of law, Tejaswini Gaud v. Shekhar Jagdish Prasad
Tewari, (2019) 7 SCC 42.
In child custody matters, the ordinary remedy lies only under
the Hindu Minority and Guardianship Act or the Guardians
and Wards Act as the case may be. It is only in exceptional
cases, the rights of the parties to the custody of the minor will
be determined in the exercise of extraordinary jurisdiction on
a petition for habeas corpus, Tejaswini Gaud v. Shekhar
Jagdish Prasad Tewari, (2019) 7 SCC 42.
Effect of remarriage on custody
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Second marriage of either of the parent is a factor to be

considered We'd
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disentitle him/her to the custody of his/her
children, Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC
654.
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Visitation rights
A visitation order means an order establishing the visiting
times for a non-custodial parent with his or her children.
Although the non-custodial parent is responsible for the care
of the child during visits, visitation differs from custody
because non-custodial parent and child do not live together
as a family unit. Visitation rights succinctly stated are distinct
from custody or interim custody orders. Essentially they
enable the parent who does not have interim custody to be
able to meet the child without removing him/her from the
custody of the other parent, Roxann Sharma v. Arun
Sharma, (2015) 8 SCC 318.
Parental Alienation Syndrome
As a result of the separation of parents, often the child falls in
the middle of a contest of loyalty, which psychologists term as
Parental Alienation Syndrome[11]. It has at least two
psychological destructive effects:
(i) First, it puts the child squarely in the middle of a contest of
loyalty, a contest that cannot possibly be won. The child is
asked to choose who is the preferred parent. No matter
whatever is the choice, the child is very likely to end up
feeling painfully guilty and confused. This is because in the
overwhelming majority of cases, what the child wants and
needs is to continue a relationship with each parent, as
independent as possible from their own conflicts.
(ii) Second, the child is required to make a shift in assessing
reality. One parent is presented as being totally to blame for
all problems, and as someone who is devoid of any positive
characteristics. Both of these assertions represent one
parent’s distortions of reality.
A negative approach adopted by any parent is a significant
factor weighing against him/her while considering grant of

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custody of the child by the court, Vivek Singh v. Romani

Singh, (2017)We'd like231.
3 SCC to show you notifications for the latest
news and updates.
Child abduction and Repatriation of child
Inter-country dispute
Cancelthe removal
If considerable time has elapsed between Allow
of a
child from the native country by any parent and steps are
taken for repatriation by writ petitioner parent, the court would
prefer an elaborate inquiry into all relevant aspects bearing on
the child. Immediate restoration of the child is called for only
on an unmistakable discernment of the possibility of
immediate and irremediable harm to it and not otherwise.
Unless continuance of the child in the country to which it has
been removed, is unquestionably harmful, when judged on
the touchstone of overall perspectives, perceptions, and
practicabilities, it ought not to be dislodged and extricated
from the environment and setting to which it has got adjusted
for its well-being. Irrespective of summary or elaborate inquiry
to be undertaken by a High Court, the welfare of the child
must prevail as foremost overriding consideration, while pre-
existing foreign court’s order must be taken as one of the
factors for deciding the question of custody. Applicability of
doctrines/principles of “comity of courts”, “intimate contact”
and “closest concern” would depend upon various attendant
facts and circumstances, keeping in mind primacy of welfare
of the child, Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309.
The consistent view of the Supreme Court is that if the child
has been brought within India, the courts in India may
conduct: (a) summary inquiry; or (b) an elaborate inquiry on
the question of custody. In the case of a summary inquiry, the
court may deem it fit to order the return of the child to the
country from where he/she was removed unless such return
is shown to be harmful to the child. In other words, even in the
matter of a summary inquiry, it is open to the court to decline
the relief of return of the child to the country from where
he/she was removed irrespective of a pre-existing order of
return of the child by a foreign court, Nithya Anand Raghavan
v. State (NCT of Delhi), (2017) 8 SCC 454.
Parens patriae jurisdiction of Indian courts
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The duty of a court exercising its parens patriae jurisdiction as

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because a foreign court has taken a
particular view on any aspect concerning the welfare of the
minor is not enough for the courts in this country to shut out
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an independent consideration of the matter. Objectivity and
not abject surrender is the mantra in such cases. But it is one
thing to consider the foreign judgment to be conclusive and
another to treat it as a factor or consideration that would go
into the making of a final decision, Ruchi Majoo v. Sanjeev
Majoo, (2011) 6 SCC 479.
Forum convenience and comity of courts
It is a settled legal position that the concept of forum
convenience has no place in wardship jurisdiction. The
principle of comity of courts cannot be given primacy or more
weightage for deciding the matter of custody or for return of
the child to the native State. The predominant criterion of the
best interests and welfare of the minor outweighs or offsets
the principle of comity of courts, Nithya Anand Raghavan v.
State (NCT of Delhi), (2017) 8 SCC 454.
Case of non-Convention countries
India is not yet a signatory to the Hague Convention of
1980. The courts in India, within whose jurisdiction the minor
has been brought must “ordinarily” consider the question on
merits, bearing in mind the welfare of the child as of
paramount importance whilst reckoning the pre-existing order
of the foreign court if any as only one of the factors and not
get fixated therewith, Nithya Anand Raghavan v. State (NCT
of Delhi), (2017) 8 SCC 454.
While examining the issue the courts in India are free to
decline the relief of return of the child brought within its
jurisdiction, if it is satisfied that the child is now settled in its
new environment or if it would expose the child to physical or
psychological harm or otherwise place the child in an
intolerable position or if the child is quite mature and objects
to its return, Nithya Anand Raghavan v. State (NCT of Delhi),
(2017) 8 SCC 454.
Questions to be considered by the Court
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In a habeas corpus petition, the High Court must examine at

We'd
the threshold like to the
whether showminor
you notifications
is in lawfulforortheunlawful
latest
custody of news and updates.
another person. The next question to be
considered by the High Court would be whether an order
passed by the foreign court, directing the person having
Cancel Allow
custody to produce the child before it, would render the
custody of the minor unlawful? Indubitably, merely because
such an order is passed by the foreign court, the custody of
the minor would not become unlawful per se, Nithya Anand
Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
Order of foreign court must yield to welfare of child
The order of the foreign court must yield to the welfare of the
child. Further, the remedy of a writ of habeas corpus cannot
be used for mere enforcement of the directions given by the
foreign court against a person within its jurisdiction and
convert that jurisdiction into that of an executing court, Nithya
Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
Order of foreign court not a decisive factor
The fact that the other parent had already approached the
foreign court or was successful in getting an order from the
foreign court for the production of the child, cannot be a
decisive factor. Similarly, the parent having custody of the
minor has not resorted to any substantive proceeding for
custody of the child, cannot whittle down the overarching
principle of the best interests and welfare of the child to be
considered by the Court, Nithya Anand Raghavan v. State
(NCT of Delhi), (2017) 8 SCC 454.
Jurisdiction of family court
Jurisdiction of Family Court qua petition for custody of minor
children is non-existent when children are foreign citizens not
ordinarily residing within the jurisdiction of the Family Court,
Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.
Duty of the court
It is the duty of courts in all countries to see that a parent
doing wrong by removing children out of the country does not
gain any advantage by his or her wrongdoing. The case
where child’s presence in India is the result of an illegal act of
abduction, the father who is guilty of the said act cannot claim
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any advantage by stating that he has already put the child in

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in like to show
Pune, you notifications
Elizabeth Dinshaw v.forArvand
the latest
M.
news1and
Dinshaw, (1987) SCCupdates.
42 .
Supreme Court’s expression of deep concern
Divorce and custody battles can become a quagmireAllow
Cancel and it is
heart-wrenching to see that the innocent child is the ultimate
sufferer who gets caught up in the legal and psychological
battle between the parents. The eventful agreement about
custody may often be a reflection of the parents’ interests,
rather than the child’s. The issue in a child custody dispute is
what will become of the child, but ordinarily, the child is not a
true participant in the process. While the best-interests
principle requires that the primary focus be on the interests of
the child, the child ordinarily does not define those interests
himself nor does he have representation in the ordinary
sense. The child’s psychological balance is deeply affected
through the marital disruption and adjustment for changes is
affected by the way parents continue positive relationships
with their children. To focus on the child rights in case of
parental conflict is a proactive step towards looking into this
special situation demanding a specific articulation of child
rights, Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.

Further Suggested Reading

1. B.M. Gandhi — Family Law [Buy Here]
2. Monica Sakhrani — Laws of Marriage and Divorce
[Buy Here]
3. Sumeet Malik — Family Law Manual [Buy Here]
4. Surendra Malik & Sudeep Malik — Supreme Court on
Family and Personal Laws [Buy Here]

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considerations for thematters
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† Assistant Editor (Legal), EBC Publishing

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[1] Reforms in Guardianship & Custody Laws in India, Report
No. 257 of the Law Commission of India, May 2015.
[2] ibid.
[3] See S. 3 of the Hindu Minority and Guardianship Act,
1956; and S. 2 of the Hindu Marriage Act, 1955.
[4] Reforms in Guardianship & Custody Laws in India, Report
No. 257 of the Law Commission of India, May 2015.
[5] ibid.
[6] ibid.
[7] ibid.
[8] See B.M. Gandhi, Family Law, 2nd Edition, Volume 1,
2019, Eastern Book Company, Lucknow.
[9] Reforms in Guardianship & Custody Laws in India, Report
No. 257 of the Law Commission of India, May 2015.
* For elaborate discussion, see case notes appended to
EBC’s Guardians and Wards Act, 1890 (Bare Act), 2019
Edition.
[10] See Summary of Practice Parameters for Child Custody
Evaluation published by American Academy of Child and
Adolescent Psychiatry.
** For elaborate discussion on what is “ordinary residence”,
see case notes appended to EBC’s Guardians and Wards
Act, 1890 (Bare Act), 2019 Edition.
[11] The Parental Alienation Syndrome was originally
described by Dr Richard Gardner in “Recent Developments in
Child Custody Litigation”, The Academy Forum, Vol. 29, No.
2: The American Academy of Psychoanalysis, 1985.
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