In cases of matrimonial discords, children are the worst suffers. It is generally seen that when the separation takes place between the husband and wife, it becomes difficult for the courts to decide as to who should get the custody or the guardianship of the children. The laws governing child custody in India are the Guardians and Wards Act 1890 and the Hindu Minority and Guardianship Act 1956. The Hindu Minority and Guardianship Act states that the ‘natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property …. in the case of a boy or unmarried girl- the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother’. There are numerous connotations this can take, some of these are: that the law reflects our patriarchal social structure and that small child are always better off with the mother. Matters are also complicated by a legal process that does not view legal guardianship to be co- terminus with physical custody of a child.
However, the thumb rule is that the welfare of the child or children should be kept uppermost in the mind. It is a common thing that when the relationship between the husband and wife become irretrievably sour, they freely start blaming each other. Under the Hindu minority and Guardianship Act the mother is normally made the custodian of the children of the tender age but if she does not have the wherewithal to take proper care of the child then the right automatically passes on to the husband. Disputes between husband and wife are now rising with the very alarming rate and the sanctity of marriage is under the cloud. The continuous fights between the partners of marriage disturb the atmosphere at home and create havoc on other members of the family. In a recent case of Vivek Singh vs Romani Singh, the Supreme Court has said that although the child, a female child, in this case, has lived in the custody of father for more than six years right after when she was only 22 months old. The child, Saesha Singh, has also stated her preference to live in the family and atmosphere of her father yet the Supreme Court directed the mother to take care of the child because it is only the mother who can shape her better future.
The brief history of the case is that one Vivek Singh of Meerut married Romani Singh of New Delhi. While the husband is an army officer, the wife is a teacher in Kendriya Vidyalaya in New Delhi. They Begot a daughter Saesha Singh on 29 October 2008.On 4th August 2010, the fight between two took an ugly turn and the women left her matrimonial house thereafter the battle for the custody of the child started between the two. The girl child remained with the father. The mother then filed a case in the family court of Delhi saying that the child remains uncared and unattended at the house of her father, who goes to the office in the morning and comes back in the evening, which is not good for the mental and physical upbringing of the child. The father, on the other hand, alleged that since the mother lives with her parents in NOIDA but works in Delhi cannot look after the baby.
The Family Court after examining different facets decided that the custody of the child be given to the father. The mother then challenged the order of the family court before the High Court, which set aside the order and handed over the custody of the girl child to the mother. The father was, of course given the ‘visitation rights’. The father did not abide by the directions of the High Court and thus invited the contempt of court proceedings against himself. The father hen filed a special leave petition in the Supreme Court, which stayed the contempt proceedings against the father but the Court decided to look into the matter into details for the welfare of the child. The Supreme Court engaged the principal counsellor one Ms Iti Kanungo to interact with the child, who expressed her preference to live with her father. However, the counsellor opined that considering the tender age of the child, her care and protection should be given to the mother.
The law is very clear. It says that welfare of minor to be given paramount consideration. This parameter has been adopted by the courts in almost all the cases. In a landmark judgement of Gaurav Nagpal vs Sumedha Nagpal, the Supreme Court has observed that the Guardianship act must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as the wellbeing of the child. It may be an attractive argument that the child has been living for long with the father but the court cannot overlook the significant factor of the welfare of the child. In yet another case of Rosy Jacob vs Jacob A. Chakkramakkal, the Supreme Court had said that ‘the children are not chattels nor are they mere playthings for their parents. The absolute right of parents over the destinies and lives of the children has, in the modern social condition, has yielded to the consideration of the welfare of the human beings, so that they may grow up in a normal balanced manner to be the useful member of the society.’
The Court further observed that ‘children are the most important human resources whose development has a direct impact on the development of the nation, for the child of today with suitable health, sound education and the constructive environment is the productive key member of the society. The present of the child is linked to the future of the nation, and while the children are the treasure of their parents, they are the assets who will be responsible for governing the nation’. The Supreme Court agreed with the High Court that “the role of the mother in the development of child’s personality can never be doubted. A child gets the best protection through the mother. It is the most natural thing for any child to grow up in the company of one’s mother. Neither the father nor any other person gives the same kind of love, affection, care and sympathy as that of a mother. The company of mother is more valuable to growing up a female child unless there are compelling and justifiable reasons, a child should not be deprived of the company of mother because that is always in the welfare of the minor child.”
Empirical studies have also shown that mother-infant bonding begins at the child’s birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. The primary need of the child is the care and love of its mother, where she has been its primary caregiving parent. An infant typically responds preferentially to sound of its mother’s voice by four weeks and actively demands her presence. The child protests the absence of mother from eight months and within the first year, the baby forms a profound and enduring attachment to her. The psychological theory says that the mother is centre of infants’ small world, which continues for many more years to come. The quality and strength of the original bond largely determine the child’s later capacity to fulfil the individual potential and to form an attachment to other individuals.
The marital happiness depends upon the mutual trust, respect and understanding and the home should not be an arena for ego clashes and misunderstandings. Nevertheless, when the dispute leads to the inevitable divorce between the husband and the wife, the welfare and wellbeing of the child would have to be the prime concern of the separated parents and the society at large. The court also in the first above mentioned case felt that since the mother is a teacher in the Kendriya Vidyalaya school and therefore she can get her admitted in her own school where she can keep the daughter under her full care and protection. This would also ensure better education and guidance of the mother who herself is a teacher.