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What are a father’s child custody rights in India?

In India there are different religions and their personal laws govern the child custody to a parent.  In Hindu community, Hindu Minority and Guardianship Act, and Guardians and Wards Acts govern the child custody.  Section 19 of Guardians and Wards Act, when father is living, and in the opinion of Court, if he is not unfit to be the guardian in the case of minor, no guardian can be appointed. Question of welfare of the minor is considered only when the father found unfit to be a guardian for minor child.  However, Section 13 of HMGA empowers Courts a wide power to override all sections of Hindu Minority and Guardianship Act, and Guardians and Wards Acts to give paramount consideration for the welfare of the minor child in deciding the child custody cases.  It also provided that law of guardianship not be pursued as right of power but to be seen as responsibility towards upbringing of children as a responsible citizen.  Section 13(2) states that no person is entitled to guardianship if it is not going to make any good for the minor child.  The importance of welfare principle against parental right was clearly emphasized in (1982) 2 SCC 544 – (Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka).   SC also held in Dhanwanti Joshi vs. Madhav Unde, (1997-3-L.W. 161), that welfare of child should not only be measured by money alone, should be seen in widest sense.

In Muslim law, first priority is given to the mother, and if mother disqualified under their personal laws, would be given custody to the father .  Mother’s right to child custody is known as right of hizanat.  Personal law that among the Hanafis, mother’s right of hizanat over her son would come to an when he completed seven years of his age and in some communities, mothers have right over sons till his puberty.  Usually, mothers right over daughters remain till they attain puberty and get married.  Father’s right of hizanat which means right of child custody would come into the picture, when mother’s right of hizanat completed, or in the absence of mother, and father undoubtedly has the right to appoint testamentary guardian with custody of minor child.

For Christians, The Indian Divorce Act, 1869 application in the matters of custody of child.  Provisions clearly mentioned that in the judicial separation suits, the court should order interim orders for maintenance of minor children as it deem fit and proper, also altering the main decree of the suit to ensure proper care and protection of the minor children.

In Parsis, Guardians and Wards Act, 1890 applicable for child custody issues, where it is clearly said that welfare of the child is primary consideration in deciding the custody and there is no provision for automatic transfer of child custody to any of the parents.

By Anitha Gutti