Q.I am a Hindu and my marriage was formalized before 7 years with my husband and in that wedlock we had two daughters aged 6 years and 4 years. But the relationship strained due to physical and mental torture by my husband. As I don’t have any income of my own, I am staying with my parents at present. As my husband cannot stay with my children for nearly 5 months a year due to the nature of his job, he will not be in a condition to look after the children. So is it possible for me to have the custody of the minor children or can my husband claim their custody on the ground of his income?
In your case the children are minors and girls and you are separated from your husband and living with your parents because of the husband’s torture. You can sue your husband under Section 3 of the Protection of Women from Domestic Violence Act 2005 for domestic violence.
In Guardianship and Welfare Act 1890 Section 4 defines Minor. Minor means a person who has not completed the age of 18 years. Under The Hindu Minority and Guardianship Act, 1956, such minor person who is physically and intellectually imperfect needs someone’s protection under the law. Hindu Minority and Guardianship Act 1956 states about the natural guardians of a Hindu minor in respect of the minor’s person as well as in respect of the minor’s property. If it is a boy or an unmarried girl-the father, and after him, the mother will be the natural guardian. But the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.With regard to your matter since the father stays away from home for nearly 5 months in a year for his work you can also contend that there is no guarantee that he can give time to the minor children and care for them in person. Section 26 of Hindu Marriage Act, 1955 also deals with custody of children. Under the Guardianship and Welfare Act 1890 older boys are given to father and older girls to mother in custody but decision is always welfare of the child.
The Bombay High Court has also held that the father cannot take away custody of a minor child from the mother if the latter has separated from him.The welfare of the children is considered when looking at the custody of the children and the right of their parents is not considered is stated in one of the case Rosy Jacob v. Jacob (5 April 1973).
In Veena Kapoor v. Varender Kapoor (6 April 1981), and Mohini v. Virendra (1 March, 1977)it was held that,when the matter concerning the custody of minor children pops up the supreme consideration is given to the welfare of the minor and not the legal right of either of the parents/particular party.
In this case Jajabhai v. Pathankhanit it was considered that where the mother and father had fallen out and they were living separately then their minor daughter was under the care and protection of the mother. Here the mother could be considered as the natural guardian of the minor girl. You can refer to the above Acts and cases and it can help you have the custody of your girls. To ascertain the benefit of welfare of the child, the court will consider other factors too, such as age, sex or wishes of the child.
by Sushma Javare.