Mentoassociates.com – Legal Articles

IMPORTANT JUDGMENTS OF THE SUPREME COURT AND KARNATAKA HIGH COURT ON CHILD CUSTODY MATTERS

Following are certain leading judgments of the Supreme Court of India and The High Court of Karnataka on matters relating to custody of a child.

1. Rosy Jacob v/s Jacob A Chakaramakkal (1973) 1 SCC 840

The Honourable Supreme Court of India held that children are neither mere chattels nor play things in the hands of the parents. In the modern changed social conditions, absolute right of parents over the destinies and lives of their children has yielded to the consideration of their welfare as human beings, so that they may grow up in a balanced manner to be useful members of society.

In matters of custody of children, factor that the father loves his children and is not otherwise undesirable cannot alone give him an edge over the mother who is equally affectionate towards her children. Courts have to distinguish between right of guardianship and right of custody.

2. Mausami Moitra Ganguly v/s Jayant Ganguly AIR 2001 SC 2179

The Honourable Supreme Court of India held that better financial resources of one parent, his or her love for the child may be one of the relevant considerations, but cannot be the sole determining factor for custody.

The Court further stated that stability and consistency in the affairs and routine of the children is also an important consideration.

In this case, custody was granted to the husband.

3. Nil Ratan Kundu and Anr v/s Abhijit Kundu 2008 AIR SCW 5769=(2008)9 SCC 413

The Supreme Court laid down that while dealing with custody, Courts are neither bound by statutes nor by strict rules of evidence and procedure nor by precedent. Paramount considerations are welfare and well being of the child. Strict parameters governing an interim injunction do not have full play in matters of custody.

4. Gaurav Nagpal v/s Sumetha Nagpal (2009) I SCC 42

In deciding matters of custody, the Supreme Court held that, Courts need to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings. Over and above physical comforts the moral and ethical values also have to be noted. The welfare and interest of the child is paramount in matters of custody. The principles of law in this regard are well settled. The welfare of the child is superior to the rights of the parent under a statute.

The Court has not only to look into the issue on legalistic basis, in such matters human angles are relevant for deciding the issues.

Though provisions of special statutes which favour the rights of parents/guardians maybe taken into consideration, Court has to exercise its ‘parens patriae’ jurisdiction.

The Supreme Court further recognised that principles of custody under Section 26 of the Hindu Marriage Act are not different to the principles of custody under the Guardians and Wards Act.

5. Athar Hussain v/s Syed Siraj Ahmed and Ors AIR 2010 SC 1417 (from Karnataka)

In matters of custody, welfare of the children is the sole and single yardstick, by which court shall assess the comparative merits of the parties contesting the custody.

The Court held that question of guardianship can be independent of and distinct from that of custody, in facts and circumstances of each case.

Second marriage of husband, is a factor to be taken into consideration while considering custody of child.

6. S. Anand v/s Smt. Lakshmi ILR 2012 Kar.2334

The Honourable High Court of Karnataka upheld the view of The Supreme Court that that the welfare interest of the child is paramount in matters of custody. The principles of law in this regard are well settled. The welfare of the child is superior to the rights of the parent under a statute.

The Court further held that the question of welfare needs to be considered in the background of relevant facts and circumstances. Each case has to be decided on its own facts. Better financial resources of one parent, his or her love for the child may be one of the relevant considerations, but cannot be the sole determining factor for custody.

Following the ruling of the Supreme Court, the High Court said that Courts need to give due weightage to the child’s ordinary contentment, health, education, intellectual development and favourable surroundings. Over and above physical comforts the moral and ethical values also have to be noted.

In the given case, there was an allegation of immoral life by wife against the husband. The custody was granted to the wife.

Author: Naqsha Biliangady,Advocate, Mento Associates.

1. Application for appointment of a guardian for the property or person of a minor comes under the purview of Guardians and Wards Act 1890. Minor is a person who has not completed the age of 18 years. The courts normally keep in mind the welfare of the minor while passing an order on guardianship.

2. The mother is entitled to the custody of the male child until he has completed the age of 7 years and the female child until she attains puberty. This right continues even after she is divorced by the father of the child. If the mother remarries, custody of the children goes to the father.

3. After the mother, the custody of the boy under the age of 7 years and the girl who has not attained Puberty belongs to the female relatives in an order.

4. In the default of mother and other female relative the custody of boy below 7 years and the girl who has not attained puberty goes to father and other relatives in an order. However a male is entitled to the custody of an unmarried girl, only if he stands within the prohibited degree of relationship with her (consanguinity and affinity). Even if a girl is married, but has not attained puberty, the mother is entitled to the custody of the girl against the husband of the girl.

5. Father is entitled to the custody of boy over 7 years of age and unmarried girl who has attained Puberty. In default of father the custody belongs to paternal relations in an order.

6. Custody of illegitimate children belongs to mother and her relations.

7. The following persons are entitled to be the guardian of the property of the minor in the following order:
i) The father.
ii) The executor appointed by will of father.
iii) The father’s father.
iv)The executor appointed by will of father’s father.
In the absence of the above legal guardians the court can appoint a guardian for the property of the minor.

8. The person who has voluntarily placed himself in charge of the person and property of a minor is called a de facto guardian. He is neither a legal guardian nor a guardian appointed by the court.

9. A legal guardian normally has no power to sell the property of the minor. But he has the power in few exceptional cases. The guardian appointed by the court can alienate or encumber the property of the minor only with the permission of the court. A de facto guardian has no power to alienate or encumber the property of minor. A guardian of a minor cannot bind a minor or his estate by an agreement of purchase of an immovable property.

10.The thumb rule for custody of children is in whose custody, the interests of the minor children are best protected. The same has been upheld by the courts in Syed Saleemuddin-vs-Dr. Rukhasana (AIR 2001 SC 2172) and Chandrakala Menon –vs- Vipin Menon (1993) 2 SCC 6.

In Noor Saba Khatton –vs- Mohammaed Quasim AIR 1997 SC 3280, Supreme Court held that the Muslim father is duty bound to pay maintenance to his children until they are capable of managing themselves or until they are married

MARRIAGE UNDER THE MUSLIM LAW

1. Nature: Under the Muslim law, marriage is a contract for the procreation and legalizing of children.

2. Eligibility: Every Mahomedan who has sound mind and who has attained puberty can enter into a contract of marriage. Lunatics and minors who have not attained puberty may be contracted in marriage by their guardian. Puberty is presumed at the age of 15 years.

3. Procedure for a marriage: There should be a proposal made by one or behalf of one of the parties and an acceptance by or behalf of the other party to the marriage. The proposal and acceptance shall be in the presence and hearing of two male or one male and two female adult Mohammedans as witnesses. The proposal and acceptance must be expressed at one meeting. Any writing or religious ceremony is not essential for a Muslim marriage.

4. Presumption of marriage: Under the following circumstances, a marriage is presumed, in the absence of direct evidence.
a. Prolonged and continual co-habitation as husband and wife.
b. Acknowledgement by man of the paternity of the child born to the woman.
c. Acknowledgement by man of the woman as his wife.

5. Irregular marriage: An irregular marriage is not unlawful, in itself, but unlawful for something else. The prohibition may be temporary or relative or the irregularity may arise from accidental circumstances. An irregular marriage has no legal effect before consummation. The children of an irregular marriage are legitimate. It may be terminated by either party before or after consummation. The following marriages are irregular marriages:
a. A marriage without witnesses.
b. If a Mahommedan marries a fifth wife when he already has four wives.
c. A marriage with a woman before completion of her iddat.
d. Marriage of a Mahomedan male with an idolatress or fire worshipper.
e. Marriage of a Mahommedan woman with a Jewish, Christian, an idolator or a fire worshipper.
e. Marriages where there is unlawful conjunction.

6. Void marriages: A void marriage is an unlawful marriage. There is absolute prohibition against such a marriage. It is no marriage at all and does not create any civil rights or obligations between the parties. The children of a void marriage are illegitimate. The following marriages are void:
a. The marriage of Mahommedan who has attained puberty and is of sound mind, but without his consent.
b. A marriage with a woman who has her husband alive or who has not been divorced by him.
c. Marriage of a Mahommedan with his mother, grandmother, daughter, grand daughter, his sister, niece or great niece (consanguinity reasons)
d. Marriage of a Mahommedan with his wife’s mother or grand mother, wife’s daughter or grand daughter, wife of his father or paternal grandfather, wife of his son, son’s son or daughter’s son(affinity reasons)
e. A marriage prohibited by fosterage.

7. Iddat: Iddat is the period during which a woman who is divorced or whose husband is dead is prohibited from remarrying. The prohibition is imposed to ascertain whether she is pregnant by her husband to avoid the confusion of parentage.

8. Inter religious marriages:
a. A Mahomedan male may marry a Jewish or Christian woman but not an idolatress or fire worshipper.
b. A Mahommedan woman cannot marry a Jewish, Christian, an idolator or a fire worshipper.

9. Sunni Shia marriages: A Sunni can marry a Shia.

10. Muta Marriage: a. Muta marriages are temporary marriages practised among Shias.
b. A Shia male may contract a muta marriage with a woman professing Mahomedan, Christian, Jewish or a fire worshipper.
c. A Shia woman cannot contract muta marriage with a non Muslim.
d. Conditions for the muta marriage: The period of co habitation and the amount of dower shall be fixed.
e. A muta marriage does not create mutual rights of inheritance between the man and woman, but the children are legitimate and can inherit from both the parents. A muta marriage is dissolved on the expiry of the term. A husband can put an end to the contract of marriage even before the expiration of the period.

11. Marriage of minors:

a. Minors (who have not attained puberty) are not competent to enter into a contract of marriage. They may be contracted in marriage by their guardian.

b. The right to contract a minor in a marriage lies successively to father, paternal grandfather, brother and other male relations on the father’s side. Thereafter the right lies on mother, maternal uncle or aunt and other maternal relations.

c. A minor girl can dissolve her marriage, on attaining puberty, under the provisions of the Dissolution of Muslim Marriages Act, 1939. Any repudiation must be confirmed by the court.

In Javed-vs- State ofr Haryana, AIR 2003 SC 3057, Supreme Court has held that Polygamy can be regulated or prohibited by legislation in the interests of public order, morality and health or by any law providing for social reform or welfare.

For example, Rule 28 of the Karnataka Civil Service Conduct rules, 1966 prohibits the second marriage for a government servant, who has a wife living, without the permission of government, even though the second marriage is permitted under his personal law. Similarly no female government servant shall marry any person, who has a wife living, without the permission of the government.

1. The Father or Mother of the Minor has to notify the name change of the minor in one of the daily leading newspaper.
2. Prepare an original affidavit from the side of the guardian attested by First class Magistrate/ Notary/ Oath Commissioner, showing the details of father’s/husband’s name along with the residential address.
3. A printing matter needs to be prepared in the form of a specimen provided by the department of Publication of the Central Government.
4. The news paper publication (in Original), the Affidavit in Original, two Passport size photographs of the parent and the printing matter in original , along with applicable fee, should be sent to the Controller Of Publication, the Department Of Publication, civil lines, Delhi-54, for publication in Official gazette of India, Part IV.