When husband and wife have differences, there is no denying of the fact that it is the child born from their wedlock who is the most effected person. The child cannot be expected to choose from either of the party and this decision when forced on the child, hampers not only his mental growth but psychological behavior as well. A child loses the love he most deserves from each parent because of the inter-se disputes between his parents when they fight for the complete custody of the child.

Child custody is one of the tricky and the most vital question that needs to be settled by any Divorce Lawyer during the settlement between parties or during the mutual consent divorce proceedings by giving proper guidance. Who shall get the custody of the child becomes a bone of contention between the quarreling spouses but this question is not a single question but it is inter-connected with ancillary issues i.e. maintenance and property division etc.

BEST INTEREST DOCTRINE: WELFARE IS PARAMOUNT

If any custody matters reach the Court for a decision, the only consideration that the Court takes while deciding such issues is the welfare of the child. That is the sole point on the basis of which the custody is decided. The court doesn’t look at the precedents while deciding child custody because the facts of each case is different. There is no hard and fast rule that during divorce proceedings for a tender age child, the custody would automatically go to the mother yet the Supreme Court has time and again pronounced its view that if any child is of a very tender age and the mother is not capable enough for the reason of mental illness, physical incapacity, etc. which would have a direct bearing on the growth of the child, in that case only, the custody would not be given to the mother and only visitation rights be granted. But the inclination of the Court when there is a minor girl child is mostly towards the mother irrespective of the fact that as per the written law, the father is the natural guardian of a child.  Thus, as per various decisions rendered by the Courts all over India while deciding the custody issues between the spouses during divorce proceedings, it shows that as a thumb rule, the best interest doctrine is followed i.e. the welfare of the child.

FACTORS DETERMINING BEST INTEREST OF CHILD

There are various factors which weighs in the mind of the Court while deciding the child custody issues for coming to conclusion as to the best interest of the child will be served with which parent. The following are some of the factors and it actually varies from the factual situation of each case as well.

1. Capability inclusive of mental and physical capability of the parent seeking full custody of the child.
2. The desire of the child, if the Court finds that the child understands the nature of questions put to him.
3. If a child needs special attention due to the medical condition or otherwise, the emotional, physical alongwith economical support is also considered.
4. Emotional bonding and stable, conducive environment
5. Gender of child at times also becomes important
6. Comparative material welfare of the child after assessing the psychological impact, if any, on the change in custody.

The above list is not exhaustive and the Hon’ble Supreme Court has time and again taken into consideration specific factors and the situations of a particular case while exercising its discretion of granting custody to that parent with whom welfare of the child is most effective.

In the case of Mamta v. Ashok Jagannath (2005) 12 SCC 452 the Court opined that the High Court while deciding the custody of the child to be given to father or mother or partially to one and partially to another, must, “(a) take into account the wishes of the child concerned, and (b) assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker. All this must be done in addition to ascertaining the comparative material welfare that the child/children may enjoy with either parent”.

INFLUENTIAL PARENT GETS THE CUSTODY?

Commonly seen in Indian Society is the conflict over money for maintenance, which is money to be paid by the stable and earning partner to the other. The main issue revolves around the amount of maintenance which is to be paid for the child support. The same can be claimed under Section 125 of Cr.P.C. if the mother is not able to maintain the child out of her own means. While agitating their custody issues, the parents fight over the amount of maintenance required for the healthy growth of the child.  However, the decision rendered by the Courts time and again shows that the courts are duty bound to bring a balance in the liability of each parent if the child custody is awarded to a parent who is economically weak. In such cases, joint custody is the most preferred option so that the financial needs of the child are not hampered. Further, another bone of contention remains the property rights of the child. The trend which is seen now a days as adopted and followed by the Courts is either to get some property registered in the name of the child and if that is not available then a certain amount is directed to be deposited in a fixed deposit having good return of interest so that interest money can be utilized until the period of the fixed deposit expires. This is uncontested even in cases of live-in relationships or registered wedlock’s.

CONCLUSION

While granting custody to any parent, it is of paramount importance that the welfare of the child is best served. The parents with which the rights of the child qua health, maintenance and education are best protected, would eventually be able to get the full custody of the child and the other parent would have to settle for visitation rights or Joint custody where an arrangement could be made by which the child gets to spend equal time separately with each parent. Though the Hindu Minority and Guardianship Act provides that the custody of a tender aged child must be given to the mother however that is also rebuttable as if the father is able to prove with evidence that the welfare of the child doesn’t lie with the mother. Thus, the only consideration which is considered by the Courts in deciding which parents would get what kind of custody is the welfare of the child.