Custody of Children

Section 26 of the Hindu Marriage Act, 1995 deals with the custody of children. The matrimonial court can grant the custody of the child, as an interim measure, in a case pending before it.

The Section gives the appropriate court (usually the Court of Additional District Judge) ample power, to issue directions, or pass orders, during the pendency of the proceedings, or at any time thereafter, for the custody, maintenance and education of minor children of the couple who are partner to the proceedings.

The wishes of the children, wherever it is possible to do so, are always kept in mind by the courts, while passing orders in connection with the custody of the minor children. The power to make such orders includes the power to revoke, suspend or vary them and includes interim orders as well as final orders.

Property of Minor Children:
This section does not speak about the property of the minor children. In fact, the provisions of this section can not be interpreted to affect the ordinary law of guardianship of minor children. This section does not speak about the property of the minor children; it speaks only of their custody, maintenance, and education, or in other words the guardianship of their persons.

The factors, which the court keeps in mind, while deciding the question of the minor children:
There are of course various factors, which have to be kept in mind by the courts deciding the question of the custody of the minor children. The High Court of Himachal Pradesh observed that “The welfare of the minor is the crucial thing to be regarded by the court”. (In Paraminder Lal Sarin Vs Suma Lata, AIR 1984 HP1)

The orders passed by the competent court in regard to the custody of the children, pending disposal of the case, are not final. These are interim orders. They are subject to change, depending upon the circumstances of the case. The court has very wide powers to change, vary or alter its earlier order in case the need arises.

Procedure followed by the courts while deciding the custody of minor children:
The normal procedure adopted by the courts is very simple. The mother invariably gets the custody of the child, if the child is below the age of five years. After the child has crossed the age of five, the custody of the male child goes to the father, and custody of female goes to the mother. But the court has ample powers to deviate from the normal procedure, taking into consideration the facts and circumstances of each case brought before it.

A. V. Venkatakrishnaiah Vs S A Sathyakumar:
The father had remarried and had a son from his second wife. It was quite probable that more issues may be appearing in due course. The step – motherly treatment is proverbial in this country. In the court also minor refused to go to his father. The father was likely to have not much time left to look after his son, who would be left with his step mother. Taking all the facts into consideration, the Karnataka High Court held that the welfare of the child was not secure in his father’s house, and its custody was refused to him though being an officer in a Bank, he was in a position to look after the child well and had made several deposits in the bank in the name of the child. Therefore the petition of the father for the custody of the child was, dismissed by the Hon’ble High Court.

Court decision safeguards abandoned Child’s future:
The five - month old unnamed girl, who was abandoned by her mother three days after being born, was restored to her guardians, thanks to the landmark judgment by the Lucknow bench of Allahabad High Court. Ironically, the High Court did not honor the claims of either Mr. Sarwan Kumar Sinah to seek custody of the child, or those of Mr. Shakil Aziz, who approached the court on religious grounds.

The Division Bench of the High court, comprising Justice D. K. Trivedi and Justice I. P. Vashistha, lamented the absence of any rules. Devices or regulations adopted by the State Government for adoption and upbringing of such abandoned children, especially since it is a welfare state, spending enormous amounts on populist scheme. The court ruled in favour of a bank officer. Mr. Manoj Rajan Asthana, because he could bring up the child in the best possible manner. His wife, Mrs. Nandini Asthana being a science post graduate, who could take good care of the child’s education in a better way than the wife of the other two contenders, who were not even graduates, the Court observed.

“Both me and Mrs. Asthana are highly educated, financially better placed than the other two contenders, and are much younger than them to ensure proper upbringing of the child” the Asthanas had said.

Regarding Mr. Shakil Azizs claim that being the daughter of Muslim parents, the child should be handed over to a Muslim family only, the Judge observed: “Every infant is a child of God, radiating innocence of an angel. It has no religion, it is man made customs and practices, which emboss him with sectarian brands.” The Court said that child should make her own decisions about her religious beliefs when she comes of age. The Court hoped that her foster parents would bring her up in a liberal environment where human values were given better consideration than dogmatic philosophies.

The unfortunate child was born at the local Dufferin Hospital on April 1st, 1995. Her mother’s name, as per hospital records is Shama, wife of Khalil, a resident of Rakabganj, Lucknow. However, when her mother deserted her and a search was launched, the address was found to be fake. The child, who would otherwise have landed into some orphanage proved to be luckier than other such abandoned children as on reading the news in a local paper, Mr. Shravan Kumar Sinah, a school teacher from Gaya (Bihar) who happened to be in town to visit his brother, went to the hospital to seek the girl’s custody as he had been childless for the past 29 years.

However Mr. Shakil Aziz, also without a child for the past 22 years, finding that there was already a claimant for the child’s custody, appealed to the High Court, seeking guardianship of “daughter of a Muslim family”. But the Court ruled that since Ms. Shama’s name and address could not be verified there was no proof of her religion. While the case was still pending in the High Court, an issueless Mr. Asthana also filed an application to seek the custody of the child.

The Court, while seeking advice of various government and non government organisation on the issue, ordered Dufferin Hospital Superintendent Dr. S. S. Negi to take of the child while the case was being decided in the Court. The High Court also asked Judge J. C. Mishra to ascertain the most suitable guardian for the child. The High Court in its order, has attached a condition that if the Asthana family was not found taking good care of the child, the court will change its decision.