For fathers, getting custody of children post-divorce is certainly a bottleneck. The law leans in favour of mothers and is generous in sustaining abuse allegations against husbands. Nonetheless, the cases which were previously decided in favour of granting custody rights to fathers does illuminate some hope for the case of fathers, whereby fathers could gain grant of custody by proving that the same works in the best interest of the child.
Legal Framework
The universal law pertaining to the custody of a child post-divorce is the Guardians and Wards Act, 1890(1). This is the first-ever secular law addressing the issue and it lays down provisions for entertaining applications for the custody of a child and for enforcement of the same. The court has the authority to assign guardianship on the basis of an application filed. The law was enacted to supersede every other law addressing similar issues. Section 9 talks about the jurisdiction of the court to address guardianship on application and Section 25 talks about title of guardian to the custody of the ward. The said Act applies to kids regardless of assigned demarcations such as religion, race or creed.
Kinds of Custody
There could be three possible outcomes under the assignment of such custody. The outcome depends on the conditions and favours the best interest of the minor and his/her safety.
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Sole Custody: If one parent is proven to be abusive or unfit, staying with the said person would not be in the best interest of the child. Hence, the child will be left in the custody of the other parent, if the other parent is fit.
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Joint Custody: This concept is an offshoot of the negotiation process. Here, both parents will have legal custody over the child while one of them will have physical custody and will be the child’s primary caretaker.
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Third-Party Custody: Here, neither of the biological parents get custody of the child. The child’s custody is assigned to a third person.
Parens Patriae
This is the principle which governs the courts while deciding what becomes of a child stuck in between the separation of their parents. The court is the ultimate parent and protector of the child. Here, it is to be noted that there has been a shift of view from ‘right to a child’ to ‘the child’s right’. The question of financial capacity takes the back seat and the question of a safe and secure environment receives higher importance. Normally, in matters of custody, children of ages less than five are normally granted mother as the preferred custodian while the child’s opinion will be taken into consideration if they are nine years old or older.
Custody under Personal Laws
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Hindu Law: The proceedings for custody of a child under Hindu Law can be initiated only if both the parents are Hindus. The Hindu Marriage Act(2) bestows power to the courts to pass interim orders, judgments, amendments, etc. with respect to the child’s maintenance. The Hindu Minority and Guardianship Act declares that only biological parents have a right to seek custody of the minor child.
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Muslim Law: Muslim Law has the concept of Right to Hizanat where the mother alone has the right to custody unless she is proven guilty of misconduct. The right shifts to the father only in the absence of an able mother.
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Christian Law: There are no prescribed laws for Christians when it comes to the custody of the child. However, the same could be sorted out via Section 41 of the Divorce Act. The couples can also choose to be governed by the Special Marriage Act(3) in this regard.
Winning Custody for Fathers
There are no set criteria to determine accurately which parent the custody of the minor goes to, although there are mechanisms to enforce the said grant of custody to a particular parent under the Guardians and Wards Act. The subjectivity of standards could be perceived to lean in favour of the mother.
Yet, there could be things you could focus on and be cautious about if you’re a dad fighting for the custody of your children. Like the following:Beware of abuse charges: The law leans in favour of women when it comes to abuse allegations against men. Here, make sure you don’t create scenarios which could potentially substantiate such allegations, which might as well even strip you off your visitation rights.
Plan before agreeing to child-support: Consider the impact of agreeing to child support regards to taxes and your financial power.
Vie for visitation rights: Although it is true that law leans in favour of women in these matters, visitation rights could be prayed for which would essentially keep fathers in contact with the children, thus enabling them to communicate to their kids that they care. If a father cannot get custody of a child, he can always pray for grant of visitation rights.
These are all pretty much subjective things that might work out in a father’s favour in post-divorce cases, in case of child custody rights.
Child custody cases where the father gets custody
Kalyan Roy v. Priyanka Roy: The wife, the applicant who filed the petition for child custody, moved out owing to alleged domestic violence from her husband and in-laws. Here, the father was looking after the kid post the incident where the mother left home. He was running her expenses on his own. Further, the daughter was not willing to go with her mother. Here, the court, in the best interest of the child, awarded custody to the father. Nonetheless, visitation rights were granted to the wife.
Sharli Sunitha v. Dr. D. Balson: The wife is the applicant in this case too. Here, the wife had taken the child away to her auntie’s residence following frequent alleged misconduct by her husband. The conduct of her husband had apparently resulted in mental agony and illness to her. Here, the allegations of the wife did not sustain before the court and the court held that the wife was running away on unsustainable grounds which has imperilled the child’s best interests. Hence, custody was awarded to the father.
Sri Koustav Dey v. Sri Sudhir Chandra Das: The petition for custody of the child was filed by the father against his father-in-law. The mother had committed suicide while the father was away. The father-in-law, Das, tried to blame the same on Dey and filed an FIR which eventually was decided in Dey’s favour. He even tried to play with the mind of the young kid and to instil hate for the child’s father. The court, considering these circumstances, held the case in the father’s favour and granted custody rights to him.
Bottom Line
The inference to be drawn from the cases cited and the advice given is that, despite the clear inclination in favour of mothers in cases of child custody, fathers can win the same if he can successfully prove that grant of child custody to him is in the best interest of the child.
External Links:
1. Guardians and Wards Act, 1890 - A detailed view of the Guardians and Wards Act, 1890.
2. The Hindu Marriage Act - A sitemap to The Hindu Marriage Act.
3. Special Marriage Act - A detailed view of the Special Marriage Act.
