A deep dive into India’s custody and visitation rights

Custody disputes are often at the heart of emotional processes in India, especially in cases of divorce or legal separation. However, in the absence of clear, consistent guidelines for determining custody and visitation rights, these proceedings have become a maze of confusion and unpredictability. Families are left at the mercy of the judicial system, uncertain of the outcome and the impact on their children's future.

There is an urgent need for comprehensive, standardized guidelines by the judiciary or legislature. These guidelines would not only ensure fairness and consistency, but would also put the best interests of the children involved first. It is a call to action to limit the unchecked discretion of judges and replace it with a framework that puts the best interests of the child first. In addition, certain critical questions must be answered. Are current custody decisions truly impartial and objective, or are they influenced by the subjective whims of individual judges? Is it time to establish clear rules and criteria to distinguish between different types of custody arrangements and ensure that the needs of each child are addressed precisely and carefully?

When dealing with complex custody disputes, clarity is not just desirable – it is essential. It is 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, there are no uniform rules or guidelines in Indian family law that judges can follow in custody and visitation cases. As a result, decisions are heavily influenced by the personal discretion of judges who bring different backgrounds, experiences, mindsets and biases, and these factors have a significant impact on the cases they decide. This variability leads to unpredictable and widely varying outcomes in custody and visitation decisions. The differences in judgments are so great that even in cases with similar facts, the results are often contradictory. Consequently, two different judges in similar circumstances are likely to make completely contradictory decisions on custody or visitation, undermining the perception of true justice in these cases. This inconsistency affects not only the parents but more importantly the children, whose welfare and interests should be paramount in any custody decision.

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

A constant refrain underlying almost all court decisions regarding custody and visitation rights of minor children is that “the welfare of the child is paramount.” This is evident from Section 13 of the Hinu Minority and Guardianship Act, 1956, which provides that when a court appoints or declares a person as the guardian of a Hindu minor, the welfare of the minor shall be the paramount consideration.

The only law which defines to any extent the welfare of a minor is section 17 of the Guardians and Wards Act 1984. The relevant part of it is repeated as follows:

“17. Matters to be taken into account by the Court in appointing a guardian.-(1) In appointing or declaring a guardian of a minor, the Court shall, subject to the provisions of this Section, have regard to what appears to be in the best interests of the minor in the circumstances, in accordance with the law applicable to the minor.

2) In assessing the best interests of the minor, the court shall take into account the minor's age, sex and religion, the character and abilities of the proposed guardian and his or her family circle with the minor, any wishes of a deceased parent and any existing or previous relationship of the proposed guardian with the minor or with his or her property.

3) If the minor is old enough to develop a reasonable preference, the court may take that preference into account.”

However, because there are no clearly defined statutory guidelines outlining the factors that should be considered in determining the welfare and interests of minors in a wide variety of factual circumstances, courts rely on their own interpretations and personal opinions about what is best for these children.

For example, in the case of Goverdhan Lal v. Gajendra Kumar[1]The High Court found:

“10. It is true that the father as the natural guardian of a minor child has a paramount right to claim custody of his son. However, in matters relating to custody of a minor child, the welfare of the minor is the paramount consideration and not the legal right of any particular party. Although Section 6 of the Hindu Minorities & Guardianship Act, 1956 specifies the 'father' as the natural guardian of a minor son or daughter, that provision also cannot override the paramount consideration which is what is conducive to the welfare of the minor. In order to arrive at a just and appropriate decision, keeping in view that the welfare of the child is the paramount consideration, we thought it appropriate to call the child and ascertain his wishes as to with whom he wishes to live.

Also in MK Hari Govindan v. AR Rajaram[2]the Court ruled as follows:

6. In our view, such cases cannot be decided by perusing the documents, oral evidence or precedents without considering the human aspect. Apart from the evidence, the human aspect is of paramount importance for the welfare of the minor, as the other materials can be prepared either by the parties themselves or on the advice of counsel as they wish.

In Gaurav Nagpal v. Sumedha Nagpal[3]The Supreme Court ruled as follows:

“24. The most important issue for the consideration of the court is the welfare of the child. But the welfare of the child must not be measured in monetary terms or merely in terms of physical comfort. The word 'welfare' must be understood in the widest sense. The moral or religious welfare of the child must be taken into account as well as his physical well-being. Nor must the bond of affection be disregarded.”

As recently observed in Mausami Moitra Ganguli Vs Jayanti Ganguli[4]the court has found that while the superior financial resources of one of the parents or their love for the child may be one of the relevant considerations, they cannot be the sole determining factor in determining custody of the child. Here lies the heavy burden of the court to exercise its judicial discretion prudently in the light of all relevant facts and circumstances, keeping the best interests of the child as the primary consideration.

Furthermore, to determine which parent is better suited to take custody of the child, the courts follow a positive test laid down by the Supreme Court in Nil Ratan Kundu v. Abhijit Kundu.[5]:

62. In our view, what is relevant in such cases is not the ‘negative test’ that the father is not ‘unfit’ or disqualified to have custody of his son/daughter, but the ‘positive test’ that such custody would be in the best interests of the minor. On that basis, the court should exercise the power to grant or refuse custody of the minor and award it to the father, mother or other guardian.

Finally, the Supreme Court judgment in the case of Lahari Sakhamuri v. Sobhan Kodali[6] summarizes almost all of the factors that courts must consider when dealing with custody and visitation issues:

49. The key factors which the courts must take into account in assessing the best interests of the children and the parents alike may be outlined, inter alia, as follows:

(1) Maturity and judgment;

(2) mental stability;

(3) the ability to ensure access to schools;

(4) moral character;

(5) the ability to engage in sustained community involvement;

(6) financial capacity and, last but not least, factors related to the relationship with the child, as opposed to the characteristics of the parent as an individual.

However, the above analysis of the term “welfare” raises the question of whether the child’s welfare is truly ensured by the justice system in custody and visitation cases in the absence of comprehensive guidelines. The answer today is clearly no.

To address these issues, it is imperative for the legislature and/or judiciary to develop comprehensive guidelines for custody and visitation cases in India. These guidelines should put the best interests of the child first, but more importantly, they should also aim to ensure similar results in similar factual circumstances, thereby achieving uniformity in such judicial decisions and preventing arbitrary exercise of discretion by judges.

Similar to the landmark Supreme Court judgment titled ‘Rajnesh and Anr vs Neha[7]which provided parameters for determining temporary support and alimony, courts should follow suit in custody and visitation cases by establishing a standardized framework of guidelines to ensure fairness and uniformity even in these sensitive matters.

In order to ensure that such a standardised set of guidelines is truly comprehensive and inclusive, it is recommended to take into account, among others, the following different situations and factors:

  1. Can the same standards be applied when granting custody and visitation rights to a biological and a non-biological parent?
  2. Should the visitation rights of fathers of minor daughters be as comprehensive and unrestricted as those of fathers of minor sons, and vice versa if mothers want visitation rights?
  3. Do the non-custodial parent and the child live in the same city or in different cities?
  4. Is the non-custodial parent employed and does he or she contribute regularly and sufficiently to the child's satisfaction and development?
  5. Does the custodial parent also have a duty of consideration to ensure that visits between the minor child and the visiting parent are smooth and effective, and what are the consequences for a parent who does not cooperate with these visits?
  6. Is the minor child an only child or does he or she have siblings? If there are siblings, would it be advisable to separate the siblings and give each parent individual custody?
  7. Is visitation absolutely necessary in all cases, assuming that a child needs the love and affection of both parents? Are there exceptional circumstances in which it would be justified to deny visitation rights to a non-custodial parent?

The lack of standardized guidelines in Indian custody and visitation cases raises profound questions about the sensitivity and effectiveness of our justice system. The lack of a uniform framework not only encourages inconsistency but also exposes families to unpredictable and often contradictory judgments, compounding their suffering.

Comments are closed.