Author Name:   pushkarthakur

Child custody and guardianship are legal terms which are sometimes used to describe the legal and practical relationship between a parent...

Child Custody & Guardianship: Indian Scenario Compared to the West

Child custody and guardianship are legal terms which are sometimes used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.[1] The religion-based distinction of the personal laws is an evident and accepted fact. These laws are zealously guarded, fiercely protected and justified by the various religious communities.[2] Before the advent of the British rule, the major laws of inheritance in India had either their roots in the respective religion or were deeply influenced by the personal laws, owing their allegiance to religion.

Mothers and fathers both have a prominent role to play in supporting the growth and development of their children. The basic opinion of the child and the mother is highly ignored while determining the custody of the child. Because a father earns more than a mother, it does not entitle him to get the custody of the child in the event of a divorce. This situation is changing in recent times. Child custody is being awarded to the parent keeping in view the best interests of the child.

Keeping in account the need for brevity of the draft, I would like to diversify my draft into three main chapters.
They are:
Chapter -1 ( Child custody and Guardianship in Hindu law)
Chapter -2 (child custody and Guardianship in Muslim Law)
Chapter -3 (child custody and guardianship in The West)

CH-1 (Child custody and Guardianship in Hindu law)
The Hindu law of guardianship has been codified and reformed by the Hindu Minority and guardianship Act,1956. With the help of the provisions of the act[3],it will be convenient to discuss the subject matter under suitable sub-headings.
1. Guardianship of person of minors
2. Guardianship of the property of minors.
3. De-facto guardians
4. Guardians by affinity

1.1 Guardianship of person of minors
Under the Hindu Minority and Guardianship Act,1956[4], minor means a person who has not completed the age of eighteen years. A minor is considered to be a person who is physically and intellectually imperfect and immature and hence need someone’s protection.

Guardians may be of the following 3 types:
1. Natural guardians
2. Testamentary guardians
3. Guardians appointed or declared by the court.
Other than the types mentioned, the two other types of guardians, existing under Hindu Law are de-facto guardians and guardians by affinity.

Natural guardians are of three types
a. Father- a father is the natural guardian of his minor legitimate children, sons and daughters. A father cannot be deprived of the natural guardianship of his minor children unless he has been found unfit.[5] The position of adopted children is at par with that of born children.[6] In case the father is incapable ,or fails or refuses to perform the functions the mother can be the guardian.[7]
b. Mother – the mother is the guardian of the minor illegitimate children even if the father is alive. Mother’s right to guardianship stays even if she has converted her religion.[8] The position also remains the same even if the child is an adopted child and not a natural born child.[9]
c. Husband is the guardian of his minor wife.

The father can appoint a testamentary guardian on his own will. If the father does not appoint , the mother’s appointee will resume the responsibility of the guardian..[10] Guardians appointed by the court are the guardians appointed by the virtue of the courts empowerment. Under the Guardians and Wards Act,1980, the jurisdiction is conferred on the district court. The district court on its own discretion appoints any person whenever it thinks it to be better for the welfare of the child.[11]

1.2 Guardianship Of Minors Property
The natural guardian of the person of a child is also the guardian of the property of the concerned child. But a natural guardian is not the guardian of the minor’s undivided interest in the joint family property. Neither the natural guardian not the court can appoint a guardian of the minor’s undivided interest in the joint property.

1.3 De-Facto Guardian
A de-facto guardian is a person who takes continuous interest in the welfare of the minor’s person or in the management and administration of his property without any authority of law.[12] Hindu jurisprudence has all along recognized the principle that if liability is incurred by one on behalf of another in a case where it is justified, then the person, on whose behalf the liability is incurred or, at least, his property, is liable, notwithstanding the fact that no authorization was made for incurring the liability.

Chapter -2 (Child custody and Guardianship in Muslim Law)
As per my consideration, Muslim law is of utmost importance when it comes to gauging the actual representation of women when asking for the custody and guardianship of children. As for that matter the chapter has been further divided into suitable sub-headings.

Nature
The term guardianship connotes guardianship of a minor i.e. a person who has not attained puberty.[13] Puberty is assumed to have been attained at age 15 years in general. However, as far as guardianship is concerned, a Muslim will be governed by the Indian Majority Act of 1875 which provides that the age of majority is 18 years and 21 years if the minor has been appointed a guardian by the court. A guardian will be appointed by the court under the Guardian and Wards Act of 1890 for the welfare of the minor.

Kinds Of Guardianship
Muslim law recognizes three types of guardianship
(i) guardianship in marriage (Jabar)
(ii) guardianship of persons of the minor for custody (Hizanat);
(iii) guardianship of property which is divided into three sub groups:
a. de jure guardianship;
b. de facto guardianship;
c. Certified guardianship.

Guardianship of the Person of the Minor for Custody
Under Sunni Law the mother is entitled to the custody of a male child up to 7 years and a female child till she attains puberty. Under Shia law[14] she has custody of male child till the age of 2 years and female child till the age of 7 years; She is the de facto guardian; Under Sunni law failing the mother the custody of a boy up to 7 year and girl up to puberty goes to the following female relatives in order:-

(i) Mother’s mother how highsoever;
(ii) Father’s mother how highsoever;
(iii) Full sister ;
(iv) Uterine sister;
(v) Consanguine sister;
(vi) Full sister’s daughter
(vii) Uterine sister’s daughter;
(viii) Consanguine sister’s daughter;
(ix) Maternal aunt in like order as sisters;
(x) Paternal aunt in like order as sisters[15]

In default of mother and female relatives, the custody goes to the following:
(i) Father;
(ii) Paternal grandfather (nearest )
(iii) Full brother;
(iv) Consanguine brother;
(v) Full brother’s son
(vi) Consanguine brother’s son;
(vii) Full brother of the father;
(viii) Consanguine brother of the father;
(ix) Son of father’s full brother;
(x) Son of father’s consanguine brother;[16]

Under Shia law the custody goes to the mother, failing her to the father and failing him to the father’s father.

Under Sunni law the father is entitled to custody of the boy over 7 and an unmarried girl who has attained puberty and in Shia law to the custody of a male child over two year and unmarried girl of 7 years. The custody of an illegitimate child goes to the mother.

Rights Of Hizanat
In the case of Imambandi v.Mustadi[17] the property in the suit belonged to Ismail Ali Khan (Sunni). It was alleged by the plaintiff that on his death he left three widows one of whom, Zohra, acting on behalf of herself and her two minor children purchased the share in the suit for the possession of which they brought action. The reliefs sought were

(i) Declaration of the title and status of plaintiff’s vendors;
(ii) A decree for possession of shares covered by the sale deed; [18]

The defendants contended that Zohra was not a married wife and that the children were not legitimate and that the shares did not pass under the sale. The Privy Council held that Zohar and her children were entitled to the shares. The important question was whether the plaintiffs acquired any title to the infant’s share under the sale by the mother. The defendants contended that the mother had no power to convey her children’s interest to the plaintiffs. It was held that although the mother is entitled to the custody of the person of the minor, she is not the natural guardian and the father alone or if he is dead his executor (under Sunni Law) is the legal guardian. The mother has not power to deal with the minor child’s property. She may incur responsibilities but can impose no obligation on the infant. This rule is subject to certain exceptions provided for the protection of a minor child if there is no de jure guardian i.e. the court may appoint the mother as a guardian of the property. It was further held that if the mother pledges (mortgages) the properties of the minor child it is unlawful unless she is the executrix (of the father) or is authorized by the guardian of the minor or by the judge. Then it is lawful and the right of possession and user is established in the Murtahil (pledgee/ mortagagee) without the power of sale. [19]

Termination Of Hizanat
Disqualification of the Hizanat can be categorized into 5 heads:-
General disqualifications – a minor cannot act as a guardian of any minor other than his own wife or child, a non Muslim parent etc.
(i) Disqualification effecting females – the mother or female’s relatives can be disqualified on the following counts-

a. She leads an immoral life –
i. Adultery ;
ii. Becomes a prostitute;
iii. Has committed criminal offence;
iv. Is a professional singer or mourner

b. She neglects the child;
c. She marries a person not related to the child within prohibited degrees (Rahima Khatoon v. Saburjanesa)[20];
d. During subsistence of marriage she goes and resides at a place at a distance from the father’s place;

(ii) Disqualification affecting males - No male relative, outside of prohibited degrees, is allowed to have custody of an unmarried girl.
(iii) Disqualification affecting parents –

§ Mother gives up custody of boys after 7 and girls after puberty (Sunni Law) and boys after 2 and girls after 7 (Shia law). The mother does not lose her right to custody by divorcing the father.
§ The father is a natural guardian but will be disqualified by the court for –

o Cruelty to wife or children;
o Felony;
o Adultery (though not if the woman is not brought into contact with the child);
o If he is unfit in character and conduct;
o If he is unfit as regards external circumstances;
o If he waives his right of custody;
o If he enters into agreement to the contrary
o If he goes out of the jurisdiction of the court or if intends to go abroad; [21]

(iv) Disqualification affecting husband – husband is not entitled to custody of minor wife unless she attains puberty or such age that would permit consummation of marriage. In this circumstance, the mother is the guardian. However, minority of the husband does not deprive him of his right to guardianship.[22]

CH-3 (Child custody and guardianship in the West)
Noting the fact that western laws are represented and followed to a certain extent by the decisions and law stated in the USA, I have mainly concentrated on the concerned nation for my draft.

Due to the heterogeneous demographic structure in the U.S.A.it is very tough to actually make a law that caters to the entire nation without any prejudice whatsoever. In spite of all the legal complications during a child custody trial, all 50 states within the US have statutes that clearly determine the custody rights of a mother. Mothers are often viewed as the primary caretaker and the natural custodian of the child in cases involving paternity trials. In these cases mothers have the right to file a petition against the father on behalf of the child asking him to prove whether he is the biological and legal father of the child or not. Once the paternity of the father is proven, mother has the right to ask for child support payment on behalf of the child. Apart from this, she can also request the father to pay for the medical and health insurance of the child, share the medical expenses incurred on the birth of the child, pay a portion of the mother's attorney fees and litigation expenses. Courts generally do not support the statement that a father need not pay for the support of the child.[23]

Apart from this, in cases where the father does not fulfill his responsibilities pertaining to parenting, mothers have the right to ask the courts to terminate the custody rights of the father. In such cases, the custody rights of the father would be transferred to another person selected by the mother, if the father is found to abandon the child for a prolonged period of time.[24] Mothers can even ask the courts to nullify the visitation and custody rights of the father, if they feel that their children are experiencing physical abuse and domestic violence. In situations where the physical and mental stability of the father is affecting the emotional and psychological development of the child, mothers can file a petition before the court asking for transfer of custody.[25]

Following ratification of the United Nations Convention on the Rights of the Child in most countries, terms such as "residence" and "contact" (known as "visitation" in the United States) have superseded the concepts of "custody" and "access". Instead of a parent having "custody" of or "access" to a child, a child is now said to "reside" or have "contact" with a parent. For a discussion of the new international nomenclature, see parental responsibility.[26]

Residence and contact issues typically arise in proceedings involving divorce (dissolution of marriage), annulment and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard.

Family law proceedings which involve issues of residence and contact often generate the most acrimonious disputes. While many parents cooperate when it comes to sharing their children and resort to mediation to settle a dispute, not all do. For those that engage in litigation, there seem to be few limits.[27] Court filings quickly fill with mutual accusations by one parent against the other, including sexual, physical, and emotional abuse, brain-washing, parental alienation syndrome, sabotage, and manipulation. It is these infrequent difficult custody battles that make the news and sometimes distort the public's perceptions so that appear more prevalent than they are and the court's response appear inadequate.

Forum shopping to gain advantage occurs both between nations and where laws and practices differ between areas within a nation, The Hague Convention seeks to avoid this, also in the United States of America, the Uniform Child Custody Jurisdiction and Enforcement Act was adopted by all 50 states, family law courts were forced to defer jurisdiction to the home state.

In some places, courts and legal professionals are beginning to use the term parenting schedule instead of custody and visitation. The new terminology eliminates the distinction between custodial and non-custodial parents, and also attempts to build upon the so-called best interests of the children by crafting schedules that meet the developmental needs of the children. For example, younger children need shorter, more frequent time with parents, whereas older children and teenagers can tolerate and may demand less frequent shifts, but longer blocks of time with each parent.[28]

Conclusion
The main issue dealt with in my draft was who is the natural guardian of the minor – what the statute provides, the hierarchy among the two natural guardians, i.e. the father and the mother, the exceptions provided by the statute itself and the principles developed by the courts regarding the guardianship of a minor, Whether in regard to the above issue, the right of a person claiming guardianship is relevant or the welfare of the minor. The main issue discussed is apparent from the draft title, i.e. Women’s right to custody and guardianship of children after divorce. As a stark reality, it is still known that women are given much less representation in the society when it comes to custody and guardianship of children after divorce. The comparison with Western laws seems to be on an even keel with material laws when seen on paper but in actuality it represents the paradox of gender consideration in our nation. I am thankful to my respected family law teacher for making the concerned topics more relevant and understanding to me. The courts have been making an effort in the right direction for the representation of women which seems as the possible positive outcome of my draft.

Bibliography
Primary Sources
The Hindu Minority and Guardianship Act, 1956
The Guardians and Wards Act, 1890

Secondary Sources
# http://en.wikipedia.org/wiki/Child_custody as seen on 16/07/09
# Mulla, Principles of Hindu Law, (New Delhi, Butterworths India, 2001
# Rights of Women in Relation to Marriage in India, Association for Advocacy and Legal Initiatives, sourced from, http://www.iwrawap.org/aboutus/pdf/FPrights women.rtn.marriage.pdf
# Shamona Khanna, “Challenging the Unequal position”, Justice for women, (Indira Jaising ed., Goa: The Other India Press, 1996).
# “Removal of Discrimination against Women in Matters Relating to Guardianship and Custody of Minor Children and the Elaborations of the Welfare Principle”, Law Commission of India, 133rd Report
# Jayanthi Natarajan, “The justice of law”, The Hindu, March 2nd 1999
# Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
# Arun Kumar, “Guardianship and Custody of the Person of a Minor Child – Conflicting Claims”, Journal of the Indian Law Institute, Vol. 17: 2, 1975.
# Irwin Garfinkel, Sara McLanahan, Philip K. Robins ,Child support and child well-being (Washington DC: urban institute press,) pp-195
# Brenda Haggel, Parents and Children, (London: Sweet and Maxwell, 1981).pp-212
# http://ezinearticles.com/?Custody-Rights-of-Mothers&id=889444 as seen on 19/07/09
# Smart, Selma ,Child custody and the politics of gender, (New York: Boutledge publication,2006)
# Marlene Stein Wortman, Judith A. Baer Women in American Law: The struggle toward equality from the New Deal, 1991(Washington DC: urban institute press,2001)
# Webster Watnik, Child Custody Made Simple: Understanding the Laws of Child Custody and Child (Tenessee: Chester publication,1993)
--------------------------------------------------------------------------------
[1] http://en.wikipedia.org/wiki/Child_custody
[2]Mulla, Principles of Hindu Law, (New Delhi, Butterworths India,2001)PP-233
[3] Hindu Minority and guardianship Act,1956
[4] Sec 4(b) Hindu Minority and Guardianship Act,1956
[5] Sec.19 guardians and wards act,1890
[6] Jijabhai v. Pathan, AIR 1971 SC 315
[7] Narayan v. Sapurna, AIR 1968 Pat 318
[8] Giita Hariharan v. R.B.I. JT 1999 (1) sc 524
[9] Vandana Shiva v. Jayanta Bandopadhyay AIR 199 SC 1149
[10] Onkar v. Urmila AIR 1985 HP 100
[11] Baburam v. Keshvachand , AIR 1978 P&H 124
[12] Ethilulu v. Pathakal, AIR 1950 Mad 390
[13] Rights of Women in Relation to Marriage in India, Association for Advocacy and Legal Initiatives, sourced from, http://www.iwrawap.org/aboutus/pdf/FPrights women.rtn.marriage.pdf
[14] Shamona Khanna, “Challenging the Unequal position”, Justice for women, (Indira Jaising ed., Goa: The Other India Press, 1996).
[15] “Removal of Discrimination against Women in Matters Relating to Guardianship and Custody of Minor Children and the Elaborations of the Welfare Principle”, Law Commission of India, 133rd Report
[16] Supra n.14
[17] AIR 1987 SC 554
[18] Jayanthi Natarajan, “The justice of law”, The Hindu, March 2nd 1999
[19] Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
[20] AIR 1976 SC 252
[21] Ibid.
[22] Arun Kumar, “Guardianship and Custody of the Person of a Minor Child – Conflicting Claims”, Journal of the Indian Law Institute, Vol. 17: 2, 1975.
[23] Irwin Garfinkel, Sara McLanahan, Philip K. Robins ,Child support and child well-being(Washington DC: urban institute press,) pp-195
[24] Brenda Haggel, Parents and Children, (London: Sweet and Maxwell, 1981).pp-212
[25] http://ezinearticles.com/?Custody-Rights-of-Mothers&id=889444
[26] Smart, Selma ,Child custody and the politics of gender, (New York: Boutledge publication)pp-147
[27] Marlene Stein Wortman, Judith A. Baer Women in American Law: The struggle toward equality from the New Deal, 1991(Washington DC: urban institute press)pp-339
[28] Webster Watnik, Child Custody Made Simple: Understanding the Laws of Child Custody and Child (Tenessee:Chester publication)pp-206

The  author can be reached at: pushkarthakur@legalserviceindia.com

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