Special Marriage Act

Custody of Children

The most sensitive issue among the problems, related to the aftermath of a divorce, is the question of custody of the children. All Indian matrimonial statutes [i.e., The Hindu Marriage Act, 1955, The Special Marriage Act, 1954, The Indian Divorce Act, 1869, and, The Parsi Marriage and Divorce Act, 1936] direct the Courts to keep the following considerations in mind, while deciding the issue of custody of children:

Welfare of children: In all matters pertaining to children, their welfare is the first and paramount consideration. When all the relevant facts, relationships, claims, and wishes of parents, risks, choices and other circumstances are taken into account, the course, which s the most beneficial to the children, will be taken. All Indian Matrimonial Statutes state, in different words, that the welfare of the children should be given paramount consideration.

Wishes of parents: When the dispute, relating to custody, is between a third party and a parent or, when the dispute is between parents, the wishes of the parents is considered. Though these wishes are not conclusive, considerable weight is attached to them. However, the parents” wishes could also be completely disregarded if giving effect to them would be injurious the child.

Age and Sex of the child: It is an established practice now that the mother has the custody of the children, who are at a tender age. This is because a father cannot provide the maternal care and affection, which is essential for their proper growth and psychological development. With respect to older children, the courts have taken the view that male children, above the age of sixteen years and female children, above the age of fourteen, should not be compelled to live in custody to which they object.

Maintenance and Education: Under most Indian personal laws, the father has the primary responsibility to maintain the children except if he has no means or has insufficient means. In such cases, if the mother has the means, then she is under obligation to provide for the maintenance of the children. This obligation, however, ends once a child attains the age of majority. However, it may be continued for the welfare of a child, particularly if the child is engaged in higher studies.

The matrimonial courts have the jurisdiction to pass interim orders (an order for the time being) when a proceeding is pending.

Enforcement of Custody: All orders, passed under matrimonial statutes, can be enforced under the Code of Civil Procedure, 1908. For instance, the court can arrest a child and hand him over to the parent in whose favour the custody order has been passed.