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Going through a divorce settlement is not easy. With an ongoing maintenance suit coupled with other allegations, it gets severely difficult. The excruciating aftermath of a divorce settlement often involves the battle for the physical custody of the child.

Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. As the conditions or direct rule has not been established by statutory provisions in India, it depends on the court's discretion to grant child's custody to either of the parents.

Courts while deciding so, consider mainly three aspect before deciding on the former.

  1. Parent who demonstrates the most financial security
  2. Adequate parenting skills
  3. Least disruption for the child.

The court seeks for the benefit of child rather than the proof by either of the parents. A great shift in the court's approach has been seen while considering such cases and that has been to look deeply into the child's benefits. In Hindu Law or secular GWA Act, the court considers the decision of a child who is 9 years or older. This approach has been taken keeping in mind the welfare of the child, such as medical treatments, religious practices and insurance claims.

Under Hindu Law:

All the personal law matrimonial statutes make provisions for dealing with the issue of child custody. Hindus have an additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Apart from this, there is the Guardians and Wards Act 1890 (GWA) (secular law). The English and Indian decisions have a few statements in common which are

(i) the children of tender years should be committed to the custody of the mother

(ii) older boys should be in the custody of the father

(iii) older girls in the custody of the mother.

As to the children of tender years it is now a firmly established practice that mother should have their custody since father cannot provide that maternal affection which are essential for their proper growth.

Under Muslim Law:

The mother directly without a doubt gets the custody of the child. However, if it is proved that she is mentally or physically incapable or has any other incapability to keep the child.

How must a father get the custody?

A divorce is as agonizing to the father just as it is to the mother. However, the reality cannot be denied that Indian courts have a soft side for women in such matters. Hence, the mother is generally awarded the custody.

For a father to obtain custody is to prove the mother is unfit. There are different guidelines in each state. Examples such as, being a drug user, or alcoholic, mental illness, being abusive to the child are certain points used in the courts. Moreover, one can also claim that the mother is not able to provide a proper home or adequate care, in that case, the court may ask the father to pay extra maintenance.

InJasmeet Kaur Talwar & Anr. vs. Gurjit Singh Talwar, Delhi High Court 2014, the court interpreted the meaning of 'reasonable expenditure' for marriage and directed the husband to re-pay an amount of Rs. 37 lakhs to the wife in lieu of the marriage expenses incurred by her family.

One more way a father can gain custody would be trying to establish temporary custody first. Before the application for custody is filed in the court, if the mother moves out of primary residence without the children, it acts as a strong point. One should note that, stability in the home is what is most often looked at, when the courts are trying to decide where the children should go.

In Aviral Mittal v. State NCT & Anr, the court directed the wife to join, with the child, custody proceedings before a court in UK. However, In Anand Raghavan vs. State of Delhi & And., decided by the Delhi High Court in 2016, the husband convinced the court to repatriate a six year old child back to the UK after the mother had brought her to India following a marital dispute.

There are many such case references such as Etiappa Mudaliar Vs. T Subramaniam, In the absence of strong positive proof of father suffering any disqualification, he remains fit and proper person to have the custody of the child. Maternal grandparents directed to handover the custody of the minor to the father. In Yudhistir Mohanand Vs. Dalimba Mohanand, a famous case judgement by the Orissa High Court, the wife filed a petition for restoration of child below 5 years of age to her, alleging she was driven away from matrimonial home and child was snatched from her. A search warrant was issued. Child was in the custody of the father for the last more than six months. Father was determined to be the natural guardian, confinement does not amount to offence and search warrant was recalled. The Supreme Court, in Vivek Singh V. Romani Singh, decided the custody matter on basis of parental alienation syndrome. In Sharli Sunitha Vs. D. Balson, the Madras High Court stated that the mother is not always the right person for custody and consequently granted the custody of the minor girls to the father.

What precautions must be taken by the father?

Abuse Charges and Restraining Orders

The most common route taken by women is an abuse charge weakening the case further. If any angry, violent or ensuing arguments take place, it shall result in a restraining order which shall further restrict the father to gain custody of the child. In some cases, such fathers lose their visitation rights too. One should always be calm during such circumstances to avoid such restraining orders.

Fighting for child not fighting against the spouse

The first and initial mantra should not be to fight the opposite party but to fight for the child custody. Often such proceedings leave such men/fathers vulnerable and frustrated.

Maintaining the father child relationship

It is not only the husband and wife who are effected due to a divorce. The child becomes a major sufferer in the feud too. Fathers need to make sure their children feel that they are interested in maintaining the contact. The main issue is to keep the spirit in implementing the visitation rights, in effect to child's mental growth. In India where fathers do not usually convey emotional requirements to their child, it is necessary for them to communicate sensibly to their child about what's going on and how they still care for their child.

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Category Family Law, Other Articles by - Kappil Cchandna