Custody of children: India
This is a collection of articles archived for the excellence of their content. |
In divorce cases
Adultery is no ground for denying custody of child: Bombay HC
April 22, 2024: The Indian Express
"Adultery is in any case a ground for divorce, however the same can’t be a ground for not granting custody," a single-judge bench of Justice Rajesh S Patil noted in its verdict in a plea by the man, a son of former legislator.
The man had filed a plea in HC challenging an order of a family court which had rejected his custody claim. “Adultery is in any case a ground for divorce, however the same can’t be a ground for not granting custody,” a single-judge bench of Justice Rajesh S Patil noted in its verdict in a plea by the man, a son of former legislator.
The bench asked the man, who had earlier got weekend privileges to the child, to hand over custody of the minor daughter to the respondent estranged-wife within two days.
The court noted that submissions made by senior advocate Indira Jaising on behalf of the petitioner on alleged adulterous behaviour of estranged wife were part of his plea before family court filed in 2020 and it has to be proved by leading evidence before the said court as they are yet to be proved.
“Therefore, based on the allegations, the doubt as to whether the custody can be given to the wife will have no bearing. There is no doubt, as held by various judgments, that not being a good wife does not amount to not being a good mother,” Justice Patil noted.
The judge added that as held in a recent judgement of the Delhi HC, “even though the allegations are proved as regards to the wife’s extramarital affair, as far as custody of the minor children is concerned, in a given case, the same can be granted to the wife.”
The couple got married in February, 2010 and the daughter was born in 2015, however, as per the respondent wife, in 2019, she was driven out of matrimonial home and custody of the daughter was not given to her. However, the petitioner claimed that she had left on her own accord.
In January, 2020, she filed a complaint against her husband and initiated proceedings under the Protection of Women from Domestic Violence (DV) Act, 2005 and also levelled charges against his family members for harassing her. In response, the husband filed a divorce petition on grounds of cruelty.
The family court in February, last year granted the woman an interim custody of the minor daughter. In the same month, the petitioner sought a restoration plea citing that he had child’s custody since December, 2019. The family court however rejected his plea for interim custody, prompting him to approach HC.
Jaising argued that the minor daughter was not comfortable in her mother’s custody and it would not be proper for her to be in the custody of a mother who allegedly had multiple affairs. However, the court noted that in matters related to custody of the minor, it has to consider ‘welfare of the child’ and in the present case the daughter is in pre-puberty age.
It added that the child’s mother is a medical practitioner and is staying in a flat close to her daughter’s school along with the maternal grandmother of the child. The bench observed that the minor’s academic record during the custody with the mother was ‘good’ and held that there was ‘no reason’ to grant custody to the petitioner man and dismissed his plea.
Both parents, Child deserves love of/ SC
Oct 20, 2019: The Times of India
The Supreme Court has said a child should not be deprived of the affection of either of the parents who are fighting a legal battle for custody and family courts should grant visitation rights in such a manner that the child gets love of both.
A bench of Justices Deepak Gupta and Suyra Kant, while deciding the plea of a man seeking visitation rights to his child whose custody was given to his wife, said courts should keep the interest of the child “at the foremost” while deciding such issues and passed the order in favour of the petitioner.
“However, we give liberty to the petitioner to approach the family court for enhancement of his visitation rights and we direct the family court to ensure that visitation rights are fixed in such a manner that the child gets to know and love his father. A child has a right to the affection of both his parents... The family court may also make suitable arrangements for visitation/ interim custody during vacation periods,” the bench said.
The court passed the observation days after another bench agreed to hear a plea for adopting joint parenting system under which a child will be looked after by both the parents after divorce instead of giving custody to one of them.
The apex court had issued notice to the Centre on a petition filed by an NGO ‘Save Child India Foundation’ which contended that a child suffers the most in a matrimonial dispute and mechanism should be put in place on how to deal with such cases to protect his or her interests.
Citizenship of parent not an issue while granting custody of child
Tushar Tere, February 24, 2024: The Times of India
Citizenship not an issue, says HC, gives kid’s custody to B’deshi mom
Vadodara : A Bangladeshi woman living in Godhra fought an 18-month legal battle to win custody of her fouryear-old daughter from her mother-in-law. Gujarat HC ordered Tasnim Presswala’s mother-in-law on Friday to hand over the child to her within two days. HC said mother cannot be deprived of her right to custody of her child merely because she does not hold Indian citizenship.
Tasnim had married Habib Presswala in 2017 and gave birth to twins in 2020. While her son died within two days, her daughter survived. In Nov2021, Habib died by suicide, after which she went to her mother’s home for the “iddat” period (waiting period a Muslim woman must observe, under Islamic law, after a divorce, or after the death of her husband, during which she may not remarry).
“Her mother-in-law, Saifiya Presswala, convinced her to leave her daughter with her. But when Tasnim returned to take custody of her daughter, Saifiya refused to hand over the child,” said advocate Hitesh Gupta, who represented Tasnim in HC.
Tasnim then approached a Godhra court seeking custody of her daughter. Her mother-inlaw gave an undertaking that she would hand over the girl to Tasnim. “But the mother-in-law disappeared and filed a revision application in the sessions court. This application, too, was dismissed. The court issued a search warrant for the child. In 2022, Saifiya then filed an application in HC seeking a stay on the warrant,” Gupta told.
HC stayed the search war rant, and Tasnim moved an application to seek visitation rights to meet her daughter. “HC granted her visitation right to meet her daughter once aweek but Saifiya didn’t allow Tasnim to meet her child. Tasnim filed an application in HC to vacate the stay on the search warrant. She also approached SC which directed HC in Aug last year to decide on the stay order issue within two weeks,” headded. Tasnim’s in-laws claimed she had abandoned her child. Saifiya’s advocate also argued that Tasnim is a Bangladeshi citizen and her passport hasn’t been renewed. This means deportation could not be ruled out. However, the HC said Tasnim was settled in India for 38 years. “The HC also said as per Muslim personal law, the mother is entitled to the child’s custody till puberty,” Gupta said.
Custody of minor children to be with mother
Custody of minor shall be with mother, rules SC
Amit Choudhary The Times of India Mar 04 2015
In a custody battle between estranged parents, a minor child, under five years , shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases the child should not be treated as a “chattel“. The court said that under Hindu Minority and Guardianship (HMG) Act, Section 6(a), a father can be guardian of the property of the minor child but not of his person if the child is less than five years old.
“There can be no cavil that when a court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons,“ a bench of Justices Vikramajit Sen and C Nagappan said.
The apex court quashed the Bombay high court's or der which granted custody of a two-year-old child to father on the ground that the mother had not established her suitability to be granted interim custody of the infant.
“The HMG Act postulates that the custody of an infant or a tender aged child should be given to hisher mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardized if the custody is retained by the mother,“ it said.
“The Act carves out the exception of interim custody , in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age,“ it said.
The bench added, “The Act immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother.“ It further said, “The use of the word `ordinarily' cannot be over-emphasized. It ordains a presumption, albeit a rebuttable one, in favour of the mother.“
Children's report cards can determine custody: SC
Mother Given Custody As Kids Do Better While Staying With Her
A child's performance in exams while staying with a parent would have a major bearing on the outcome of the legal battle between couples for their custody , the Supreme Court has said.
Remarkable improvement in two children's grades while in their mother's interim custody , compared with failure in exams during their stay with their father, convinced a bench of Justice A K Sikri and Justice Ashok Bhushan to award their custody to the mother, setting aside a Bombay high court order in the father's favour.
After being married for over 15 years, the woman had walked out of her matrimo nial home, alleging mental and physical cruelty. The couple's children -a boy aged 14 at the time and a girl of 10 -remained with the father. The woman got interim maintenance from her husband, but a trial court allowed the father custody as the children were in boarding school. There is some dispute as to how the children came in the custody of the mother. The husband claimed she did not return the children after taking them out during a court-permitted visitation period.The woman said her husband, without any court order, had handed over custo dy to her as the son had “miserably failed in his Class 9 exams and he wanted her to teach him so that he did not waste a year“.
When the couple first moved court, the magistrate interacted with the children and granted custody to the mother. The sessions court rejected the husband's appeal. But the HC, on February 17 last year, directed the woman to hand over custody to their father. She appealed against the order in the SC.
Justice Sikri, writing the judgment, said though the HC correctly discussed the `welfare principle', it gave no reasons as to how the princi ple weighed in favour of the father in the given facts and circumstances of this case.
“After the children came to stay with the mother... the son's academic performance improved significantly . He is getting very high grades... In fact, academic performance of the daughter has also gone up. This factor, though noticed by the HC, has been brushed aside with the observation that if the children were not doing well earlier, blame cannot be put on the father as it could be the result of the disputes between the parents,“ said the bench.
“In the process, what is ignored is that, in spite of the dispute still existing, the academic performance of the children, while in their mother's custody, has gone up tremendously ,“ it added.
Father of child can’t be deprived of care after temporary custody to kin: SC
August 22, 2024: The Times of India
New Delhi : Supreme Court has said granting temporary custody of a minor to a relative would not deprive the natural guardian from taking back her custody as the child's welfare would be best served in the company of the natural family.
A bench of Justices B R Gavai and K V Viswanathan allowed the plea of a father seeking custody of his daughter from his sister-in-law whom he had handed over the child after demise of his wife and father during Covid-19 pandemic.
The father, took help from his sister-in-law, in taking care of his child and handed over the child’s custody to her as an interim/stop-gap solution, to see through the difficult period that he was undergoing on account of loss of his wife and father. But the sister-in-law refused to give the custody of the child and also did not allow him to see her daughter after which he initiated legal proceedings against her Referring to various judgements, the bench said relatives can take care of the child for some time but cannot retain the custody of the child. The court said it was not the case that the father was unfit to take care of the child.
Indian courts can decide custody cases despite foreign court’s verdict
Dec 23, 2022: The Times of India
Kolkata : Indian courts had the power to decide on child custody cases irrespective of what aforeign court had ordered, the Calcutta HC said, granting interim custody of a six-year-old child — a US citizen by birth — to his Rourkela-based mother, while allowing his US-based father visitation rights, reportsSaibal Sen.
A California court had directed that the child be repatriated to his father’s sole custody. The fatherthen filed a habeas corpus petition for his child, so that they could return to California. The HC held that the “principle of comity of courts” required “consideration of an order passed by a foreign court”, and not “its enforcement”.
The father had argued that his financial position allowed him to provide his child the best educationin the US. The child had s pent more time with his mother in India than in the US and repatriating him would mean he would have to spend a lot of time a lone, g iven his father’s busy schedule, the HC said.
Parent denied custody must be allowed to talk to child daily: SC
Amit Anand Choudhary, January 21, 2020: The Times of India
NEW DELHI: Holding it to be a part of human rights of a child to get love and affection of both parents who are estranged and locked in matrimonial dispute, the Supreme Court said the parent denied custody of the child should have the right to talk to him or her for 5-10 minutes every day.
A bench of Justices Deepak Gupta and Aniruddha Bose said most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse.
“A child, especially a child of tender years requires love, affection, protection of both parents... Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents...,” the bench said.
The SC, while adjudicating the custody battle of a US-based NRI couple, said even if custody is given to one parent, the other parent must have sufficient visitation and contact rights. The court said it is only in extreme circumstances that one parent should be denied contact with the child and courts must assign the reason.
“ Unless there are special circumstances to take a different view, the parent denied custody of the child should have the right to talk to his/her child for 5-10 minutes everyday,” the bench said.
The court passed the order on a plea filed by a wife challenging order of the Rajasthan HC which directed her to go back to US to subject herself to court proceedings there on custody of two-and-half year-old daughter. She had left the US with her child despite a US court directing her not to leave the country.
The bench agreed with the contention of husband’s lawyer Prabhjit Jauhar who said it was his wife who initiated proceedings in the US court and the case must be adjudicated by that court. In case she refuses to go, the court directed that she then has to hand over the child to her husband or in-laws before the Register General of HC on February 3.
“In case the child goes to USA with the husband or either of his parents, the husband shall ensure that the child talks to her mother through video calling facilities everyday,” the court said.
Passport of minor child: consent of spouse not must, says HC
SagarKumar Mutha, Dec 29, 2024: The Times of India
Hyderabad : Telangana HC recently ruled that a single parent with custody of a minor child can apply for and obtain a passport for the child without needing signature of the other parent.
Allowing a petition filed by a four-year-old girl, represented by her mother, Justice Moushumi Bhattacharya set aside the Hyderabad regional passport officer’s missive requiring the woman to pro- vide consent from the child’s father or permission from a court to obtain the passport for her minor daughter.
Justice Bhattacharya found that imposing such a burden on the mother was unnecessary. The petition had challenged the legality of the RPO’s letter. According to Zeeshan Adnan Mahmood, counsel for the minor girl, the woman’s husband deserted her and shifted to the US, relinquishing his Indian citizenship. He did not contest the mother’s petition. The woman’s divorce petition is p ending before a Hyderabad court, and the father has not sought custody of the child.
Justice Bhattacharya clarified Passport Act of 1967 and 1980 Passport Rules are clear. The Act does not prevent a single parent from applying for a passport for a minor child. The 1980 Rules allow a parent with exclusive custody of the child to apply for a passport without consent of the other parent. This applies even if the parents are separated, but not formally divorced. The only requirement is the custodial parent must provide information in the prescribed annexure.
Virtual access no solution
The Times of India, Aug 01 2016
Swati Deshpande
Court slams non-custodial parent's virtual access to kid in custody row
Giving a noncustodial parent only virtual access to a child during divorce battles is not a longterm solution and would become an empty ritual, a Pune family court said when a woman, who went to Switzerland on a work assignment in 2015, wanted to extend her stay there with her preschooler.
Last week, the judge allowed the techie to extend her stay abroad till the end of the year, provided she sends her daughter to Pune for a week or makes arrangements for her husband to visit Switzerland for a week and have access to their child. “For any parent, having only virtual access to their children cannot be a long-term solution...Without proper justification (it) will make such vir tual access an empty ritual.It will not benefit either the non-custodian parent or the child,“ judge Swati Chauhan said, adding that when done without proper justification, such virtual access will become an empty ritual. The order is significant at a time of more divorces occuring where one parent works in another state or abroad.
Such divorce cases deprive the other parent of time with the child and increasing chances of “parent alienation syndrome. The couple has been fighting a divorce battle since 2014. In June 2015, the wife sought permission to go to Switzerland for nine months for an assignment in the “interest of her career“. The child was then less than four. Her husband first apprehended that she would alienate the child from him. The father-child bond may be jeopardised, he said. After counselling, they agreed she could stay abroad till July 2016 during which he would get access to the child via video-con ferencing thrice a week and on Sundays.
On June 24, 2016, when she sought an extension till December 31, the court said, “Her request is not bona fide and fair... (she had) not bothered to explain whether her request is to complete the original assignment or begin a new one whose end date is January 10, 2017, as documents submitted later reveal“.
The husband pointed out that she had lived abroad for a year on work, leaving the child, then one year old, with her parents.The court agreed that the “father-daughter bond should not be allowed to get diluted by separation“.
Balancing the wife's plea to enrich her career and earn money and the husband's right to spend time with his child is an “unpleasant situation said the court.
Custody of children in cases other than divorce
Remarriage after spouse’s death no bar to custody claim: SC
AmitAnand Choudhary, February 12, 2025: The Times of India
New Delhi : Remarriage after the death of a spouse cannot be a stumbling block to claim custody of a child from the first marriage, Supreme Court has said while giving a father custody of his minor son who was taken away by his in-laws after the death of his first wife.
A bench of Justices B R Gavai and K Vinod Chandran said the welfare of the child could be better taken care of by the father, who is the natural guardian, and set aside an Allahabad HC order rejecting his plea. Noting that the father had remarried and the child was comfortably residing and pursuing his education at his maternal grandfather’s house, the HC had said that the welfare of the minor child, which is of paramount consideration, would be served by letting him continue with his grandfather and the father was granted visitation rights to meet the child regularly on the first day of every month.
The father then moved SC and his in-laws again highlighted his remarriage as a ground to deny him custody. However, the SC said “The father, the natural guardian, we reiterate, is well employed and educated and there is nothing standing against his legal rights; as a natural guardian, and legitimate desire to have the custody of his child. We are of the opinion that the welfare of the child, in the facts and circumstances of this case, would be best served if custody is given to the father.”
See also
Custody of children: India
