Unveiling Disparities: A Deep Dive Into India's Child Custody And Visitation Laws

There is a pressing need for comprehensive, standardized guidelines to be established by the judiciary or legislature. These guidelines would not only ensure fairness and consistency but also prioritize the well-being of the children involved. It's a call to action to rein in the unchecked discretion of judges and replace it with a framework that prioritizes the best interests of the child. Furthermore, certain critical questions demand answers. Are the current custodial decisions truly impartial and objective, or are they swayed by the subjective whims of individual judges? Is it time to establish clear-cut rules and criteria to differentiate between different types of custodial arrangements, ensuring that the needs of each child are met with precision and care?

In navigating the complexities of child custody battles, clarity is not just desirable – it's essential. It's time for India's legal system to rise to the occasion and provide the clarity and consistency that families desperately need.

The current scenario:

Currently, Indian family law lacks a uniform set of rules or guidelines for judges to follow in custody and visitation cases. As a result, decisions are heavily influenced by the personal discretion of judges, who bring their diverse backgrounds, experiences, mindsets, and preconceptions along with them and these factors do have a significant influence on the cases they adjudicate. This variability leads to unpredictable and widely differing outcomes in custody and visitation orders. The disparity in judgments is so pronounced that outcomes are often contradictory, even in cases with similar facts. Consequently, two different judges are likely to issue entirely conflicting orders for custody or visitation under similar circumstances, undermining the perception of true justice in these cases. This inconsistency not only affects the parents but, more importantly, the children, whose welfare and best interests should be the primary concern in any custody decision.

What does the term “welfare” of the child mean?

A constant refrain that underlines almost all judicial decisions on custody and visitations qua a minor child is that “the welfare of the child is of paramount consideration”. This stems from Section 13 of the Hinu Minority and Guardianship Act 1956 which stipulates that in the appointment or declaration of any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramount consideration.

The one statute that defines, to some extent, the welfare of a minor, is Section 17 of the Guardians and Wards Act 1984, the relevant portion of which is being reiterated as under:

"17. Matters to be considered by the Court in appointing guardian.-(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.

2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

3) If the minor is old enough to form an intelligent preference, the Court may consider that preference.”

However, in the absence of defined legal guidelines outlining the factors that should be considered in determining a minor's welfare and best interests in vastly diverse factual circumstances, courts rely on their own interpretations and personal opinions regarding what is best for such the children.

For example, in Goverdhan Lal v. Gajendra Kumar^[1], the High Court observed that:

“10. True it is that father being a natural guardian of a minor child has a preferential right to claim custody of his son. However, in the matters concerning the custody of minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party. Though Section 6 of the Hindu Minorities & Guardianship Act. 1956 constitutes 'father' as the natural guardian of minor son or daughter, but that provision also cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. For arriving at a just and proper decision, keeping in mind that welfare of child is the paramount consideration, we thought it proper to call the child and find out his wishes as to with whom he wants to live.

Again, in M.K. Hari Govindan v. A.R. Rajaram^[2], the Court held that:

6.In our view, this kind of cases cannot be decided by going through the documents or oral evidence or the precedents, without reference to the human touch. Apart from the evidence, the human touch is the primary one for the welfare of the minor, since the other materials may be created either by the parties themselves or on the advice of the counsel to suit their convenience.

In Gaurav Nagpal v. Sumedha Nagpal^[3], the Supreme Court held as under:-

“24. The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word `welfare' must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well-being. Nor can the tie of affection be disregarded.”

As observed recently in Mausami Moitra Ganguli Vs Jayanti Ganguli^[4], the court has observed that better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy duty is cast on the Court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.

Additionally, to determine which parent is better suited for custody of the child, the courts follow a positive test established by the Supreme Court in the case of Nil Ratan Kundu v. Abhijit Kundu^[5]:

62. In our opinion, in such cases, it is not the 'negative test' that the father is not 'unfit' or disqualified to have custody of his son/daughter is relevant but the 'positive test' that such custody would be in the welfare of the minor which is material and it is on that basis that the Court should exercise the power to grant or refuse custody of minor in favour of father, mother or any other guardian.

Finally, the judgment of the Supreme Court in the case of Lahari Sakhamuri v. Sobhan Kodali^[6] encapsulates almost all of the factors that courts must consider when addressing child custodial and visitational issues:

49.The crucial factors which have to be kept in mind by the Courts for gauging the welfare of the children equally for the parent's can be inter alia, delineated, such as

(1) maturity andjudgment;

(2) mental stability;

(3) ability to provide access to schools;

(4) moral character;

(5) ability to provide continuing involvement in the community;

(6) financial sufficiency and last butnot the least the factors involving relationship with the child, asopposed to characteristics of the parent as an individual.

However, the above analysis of the term “welfare” begs the question whether the welfare of the child is truly being ensured by the judiciary in child custody and visitation cases without any comprehensive guidelines in place? The answer, today, is clearly in the negative.

To address these issues, it is imperative for the legislature and / or judiciary to develop comprehensive guidelines for child custody and visitation cases in India. These guidelines should prioritize the child's welfare above all else, but should, more importantly, also strive to ensure similar results in similar factual circumstances thereby bringing about a uniformity in such judicial decisions and preventing arbitrary exercise of discretion by judges.

Similar to the landmark judgment of the Supreme Court titled “Rajnesh and Anr vs Neha^[7], which provided parameters for determining interim maintenance and alimony, courts should emulate this example in child custody and visitation cases as well by establishing a standardized framework of guidelines to ensure fairness and consistency even in these sensitive matters.

While framing such a standardized set of guidelines, in order to ensure they are truly all-encompassing and comprehensive, it is suggested that the following different situations and factors, inter alia, need to be accounted for:

1. Whether the same yardstick can be adopted for a biological parent and a non-biological parent when it comes to granting custody and visitation rights?
2. Should visitation rights for fathers with minor daughters be as extensive and unrestricted as those for fathers with minor sons, and vice versa when visitations are being sought by mothers?
3. Whether the non-custodial parent and the child are both residing in the same city or in different cities?
4. Whether the non-custodial parent is gainfully employed, and if yes, whether he/she is regularly and sufficiently contributing towards the needs and development of the child?
5. Whether the custodial parent also has a reciprocative duty to ensure that he/she facilitates smooth and effective visitations between the minor child and visiting parent, and what are the repercussions to be faced by a parent who does not cooperate during these visitations?
6. Whether the minor child is the only child or has siblings, and in cases of siblings, would it be prudent to separate the siblings and award custody to each parent individually?
7. Whether visitation rights are absolutely mandatory in all cases on the premise that a child needs the love and affection of both parents? Are there any exceptional circumstances in which it would be justified to deny a non-custodial parent visitation rights?

The lack of standardized guidelines in India's child custody and visitation cases raises profound questions about the sensitivity and efficacy of our judicial system. The absence of a uniform framework not only fosters inconsistency but also subjects families to unpredictable and often contradictory rulings, intensifying their distress.

Author: Preeti Singh, Advocate And Founder/Managing Partner, PS Law Advocates & Solicitors. Views are personal.