The law relating to child custody in India is very dynamic. Though there are statues governing the field but the reality is that there can be no straight jacket answer to the question as to who gets the custody of the child when there are matrimonial disputes between the parties leading to a bitter divorce or separation between the spouses.

When the child is born, little did he knew that he would be the most effected person because the parents of the child have decided to separate for their own personal reasons and there is so much hatred between them now that each of them is claiming the child for itself for whatever reasons and the child is basically become a rope which is being pulled from both the ends. Imagine the mental level of such a child who is not getting the love he deserves because the parents have decided to deprive the child of its fundamental right to love and be loved.

The term “Custody” is not defined in any law specifically however from the various decision and other provisions of the law relating to custody indicate that custody could be either Physical Custody, Joint Custody or Legal Custody. Custody is the presence of child with the parents and is distinguished from guardianship.

TYPES OF CUSTODY

1. PHYSICAL CUSTODY: child is under the care of one parent who has been awarded the custody while the other parent may get the right to visit the child and interact as agreed on mutual basis.
2. JOINT CUSTODY: The custody is rotated between the parents one after the another allowing both the parents to spend quality time with the child.
3. LEGAL CUSTODY: It is usually granted to both parents and doesn’t involve presence of child with one parent. It is basically for making every decision for the child’s welfare involving issues like education, health etc.

Supreme Court has held in the case of Lahari Sakhamuri v. Sobhan Kodali, in 2019 that the expression “Best interest of Child” which is always kept to be of paramount consideration is indeed wide in its connotation and it cannot remain the love and care of the primary care giver, i.e., the mother in case of the infant or the child who is only a few years old. The definition of “best interest of the child” is envisaged in Section 2(9) of the Juvenile Justice (Care & Protection) Act, 2015, as to mean “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identify, social well-being and physical, emotional and intellectual development.

Supreme court in another case i.e. Tejaswani Gaud v. Shekhar Jagdish observed that “It is true that the father is a natural guardian of a minor child and therefore has a preferential right to claim the custody of his son, but in matters concerning the custody of a minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party. Section 6 of the 1956 Act cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child. It was also observed that keeping in mind the welfare of the child as the sole consideration, it would be proper to find out the wishes of the child as to with whom he or she wants to live.”

CONCLUSION

As per law, though the father is the natural guardian however if the welfare of the child is not with the father, there is no way that this statutory law would be followed by the Courts in letter and spirit. Each case is to be dealt with on the basis of its peculiar facts because due weightage must be given to the comfort of the child. If the child is sensible enough and can make an informed choice for staying with either of the parent, the Court would grant the custody to that parent whom the child chooses but in that scenario as well, the other parent is not deprived of the love inasmuch as the Supreme Court has made it clear that in such cases, the other parent must allow interactions and meetings to take place for the better growth and development of the child.

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