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Custody of a minor to remain with the mother: Supreme Court

While hearing a custody petition between estranged parents, wherein the mother was allowed to retain the custody of the minor child of less than five years of age, the Supreme Court observed that a child cannot be treated like a “chattel” in such cases.

The Court observed that Hindu Minority and Guardianship Act, 1956 provides for a father to be the guardian of the minor child’s property but not the guardian of his person, in cases where the child is of an age less than 5 years.

The Court said that a child involved in a custody hearing is not akin to a ping pong ball or ‘chattel’ intended to be tossed around from father to mother or vice-versa. As such, the Court was clear on not getting caught up in petty and conflicting claims of custody lodged by the parents, as the parents cannot demand any right in such matters. Since the only consideration in custody battle would be the welfare of the child, a bench of Justice VikramjitSen and Justice C. Nagappan opined that the Parliament’s intent is absolutely correct in granting the custody of a child of less than 5 years of age, mandatorily to a mother, unless there are strong reasons for not doing so.

Earlier, the Supreme Court annulled an order of the Bombay High Court which had approved the custody of a 2 year old child to be given to the father. The reasoning behind the said order was that the mother had not been able to prove her suitability in order to be granted the interim custody of the child. The Court postulated that under the Hindu Minority and Guardianship, the custody of an infant/tender aged child is to be ordinarily given to the mother, unless there are well reasoned arguments which indicate that the child’s welfare and interest will be dealt a severe blow in case the custody is retained by the mother.

Section 6 (a) of the Act, according to the top court, therefore, preserves the right of the father to guardianship of minor child’s property but not to his person when he is less than 5 years of age. However, the said provision also created an exception for interim custody, in contradistinction to guardianship, even though the custody of a child of less than five years of age is to be given to the mother ordinarily. The use of the word ‘ordinarily’ according to the Court should be clearly noted, as a lot of emphasis has been provided to it, thereby exuding a presumption in favour of the mother.

According to the Court, the onus was on the father of the child to prove that it is not in the best interest of the infant child if his/her mother retains his/her custody. Consequently, the order of the High Court was against the spirit of the enactment, according to the bench.

by Siddhartha Singh.