Child Custody & Guardianship: Indian Scenario Compared to the West Child custody and guardianship are legal

terms which are sometimes used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child.[1] The religion-based distinction of the personal laws is an evident and accepted fact. These laws are zealously guarded, fiercely protected and justified by the various religious communities.[2] Before the advent of the British rule, the major laws of inheritance in India had either their roots in the respective religion or were deeply influenced by the personal laws, owing their allegiance to religion. Mothers and fathers both have a prominent role to play in supporting the growth and development of their children. The basic opinion of the child and the mother is highly ignored while determining the custody of the child. Because a father earns more than a mother, it does not entitle him to get the custody of the child in the event of a divorce. This situation is changing in recent times. Child custody is being awarded to the parent keeping in view the best interests of the child. Keeping in account the need for brevity of the draft, I would like to diversify my draft into three main chapters. They are: Chapter -1 ( Child custody and Guardianship in Hindu law) Chapter -2 (child custody and Guardianship in Muslim Law) Chapter -3 (child custody and guardianship in The West) CH-1 (Child custody and Guardianship in Hindu law) The Hindu law of guardianship has been codified and reformed by the Hindu Minority and guardianship Act,1956. With the help of the provisions of the act[3],it will be convenient to discuss the subject matter under suitable sub-headings. 1. Guardianship of person of minors 2. Guardianship of the property of minors. 3. De-facto guardians 4. Guardians by affinity 1.1 Guardianship of person of minors Under the Hindu Minority and Guardianship Act,1956[4], minor means a person who has not completed the age of eighteen years. A minor is considered to be a person who is physically and intellectually imperfect and immature and hence need someones protection. Guardians may be of the following 3 types: 1. Natural guardians 2. Testamentary guardians 3. Guardians appointed or declared by the court. Other than the types mentioned, the two other types of guardians, existing under Hindu Law are de-facto guardians and guardians by affinity. Natural guardians are of three types a. Father- a father is the natural guardian of his minor legitimate children, sons and daughters. A father cannot be deprived of the natural guardianship of his minor children unless he has been found unfit.[5] The position of adopted children is at par with that of born children.[6] In case the father is incapable ,or fails or refuses to perform the functions the mother can be the guardian.[7] b. Mother the mother is the guardian of the minor illegitimate children even if the father is alive. Mothers right to guardianship stays even if she has converted her religion.[8] The position also remains the same even if the child is an adopted child and not a natural born child.[9] c. Husband is the guardian of his minor wife. The father can appoint a testamentary guardian on his own will. If the father does not appoint , the mothers appointee will resume the responsibility of the guardian..[10] Guardians appointed by the court are the guardians appointed by the virtue of the courts empowerment. Under the Guardians and Wards Act,1980, the jurisdiction is conferred on the district court. The district court on its own discretion appoints any person whenever it thinks it to be better for the welfare of the child.[11] 1.2 Guardianship Of Minors Property The natural guardian of the person of a child is also the guardian of the property of the concerned child. But a natural guardian is not the guardian of the minors undivided interest in the joint family property. Neither the natural guardian not the court can appoint a guardian of the minors undivided interest in the joint property. 1.3 De-Facto Guardian

A de-facto guardian is a person who takes continuous interest in the welfare of the minors person or in the management and administration of his property without any authority of law.[12] Hindu jurisprudence has all along recognized the principle that if liability is incurred by one on behalf of another in a case where it is justified, then the person, on whose behalf the liability is incurred or, at least, his property, is liable, notwithstanding the fact that no authorization was made for incurring the liability. Chapter -2 (Child custody and Guardianship in Muslim Law) As per my consideration, Muslim law is of utmost importance when it comes to gauging the actual representation of women when asking for the custody and guardianship of children. As for that matter the chapter has been further divided into suitable sub-headings. Nature The term guardianship connotes guardianship of a minor i.e. a person who has not attained puberty.[13] Puberty is assumed to have been attained at age 15 years in general. However, as far as guardianship is concerned, a Muslim will be governed by the Indian Majority Act of 1875 which provides that the age of majority is 18 years and 21 years if the minor has been appointed a guardian by the court. A guardian will be appointed by the court under the Guardian and Wards Act of 1890 for the welfare of the minor. Kinds Of Guardianship Muslim law recognizes three types of guardianship (i) guardianship in marriage (Jabar) (ii) guardianship of persons of the minor for custody (Hizanat); (iii) guardianship of property which is divided into three sub groups: a. de jure guardianship; b. de facto guardianship; c. Certified guardianship. Guardianship of the Person of the Minor for Custody Under Sunni Law the mother is entitled to the custody of a male child up to 7 years and a female child till she attains puberty. Under Shia law[14] she has custody of male child till the age of 2 years and female child till the age of 7 years; She is the de facto guardian; Under Sunni law failing the mother the custody of a boy up to 7 year and girl up to puberty goes to the following female relatives in order:(i) Mothers mother how highsoever; (ii) Fathers mother how highsoever; (iii) Full sister ; (iv) Uterine sister; (v) Consanguine sister; (vi) Full sisters daughter (vii) Uterine sisters daughter; (viii) Consanguine sisters daughter; (ix) Maternal aunt in like order as sisters; (x) Paternal aunt in like order as sisters[15] In default of mother and female relatives, the custody goes to (i) (ii) Paternal grandfather (nearest (iii) Full (iv) Consanguine (v) Full brothers (vi) Consanguine brothers (vii) Full brother of the (viii) Consanguine brother of the (ix) Son of fathers full (x) Son of fathers consanguine brother;[16] the following: Father; ) brother; brother; son son; father; father; brother;

Under Shia law the custody goes to the mother, failing her to the father and failing him to the fathers father. Under Sunni law the father is entitled to custody of the boy over 7 and an unmarried girl who has attained puberty and in Shia law to the custody of a male child over two year and unmarried girl of 7 years. The custody of an illegitimate child goes to the mother. Rights Of Hizanat In the case of Imambandi v.Mustadi[17] the property in the suit belonged to Ismail Ali Khan (Sunni). It was alleged by the plaintiff that on his death he left three widows one of whom, Zohra, acting on behalf of herself and her two minor children purchased the share in the suit for the possession of which they brought action.

The

reliefs

sought of plaintiffs

were vendors;

(i) Declaration of the title and status (ii) A decree for possession of shares covered by the sale deed; [18]

The defendants contended that Zohra was not a married wife and that the children were not legitimate and that the shares did not pass under the sale. The Privy Council held that Zohar and her children were entitled to the shares. The important question was whether the plaintiffs acquired any title to the infants share under the sale by the mother. The defendants contended that the mother had no power to convey her childrens interest to the plaintiffs. It was held that although the mother is entitled to the custody of the person of the minor, she is not the natural guardian and the father alone or if he is dead his executor (under Sunni Law) is the legal guardian. The mother has not power to deal with the minor childs property. She may incur responsibilities but can impose no obligation on the infant. This rule is subject to certain exceptions provided for the protection of a minor child if there is no de jure guardian i.e. the court may appoint the mother as a guardian of the property. It was further held that if the mother pledges (mortgages) the properties of the minor child it is unlawful unless she is the executrix (of the father) or is authorized by the guardian of the minor or by the judge. Then it is lawful and the right of possession and user is established in the Murtahil (pledgee/ mortagagee) without the power of sale. [19] Termination Of Hizanat Disqualification of the Hizanat can be categorized into 5 heads:General disqualifications a minor cannot act as a guardian of any minor other than his own wife or child, a non Muslim parent etc. (i) Disqualification effecting females the mother or females relatives can be disqualified on the following countsa. i. ii. iii. iv. She Has Is a leads Becomes committed professional an Adultery immoral a criminal singer or life ; prostitute; offence; mourner

b. She neglects the child; c. She marries a person not related to the child within prohibited degrees (Rahima Khatoon v. Saburjanesa)[20]; d. During subsistence of marriage she goes and resides at a place at a distance from the fathers place; (ii) Disqualification affecting males - No male relative, outside of prohibited degrees, is allowed to have custody of an unmarried girl. (iii) Disqualification affecting parents Mother gives up custody of boys after 7 and girls after puberty (Sunni Law) and boys after 2 and girls after 7 (Shia law). The mother does not lose her right to custody by divorcing the father. The father is a natural guardian but will be disqualified by the court for o Cruelty to wife or children; o Felony; o Adultery (though not if the woman is not brought into contact with the child); o If he is unfit in character and conduct; o If he is unfit as regards external circumstances; o If he waives his right of custody; o If he enters into agreement to the contrary o If he goes out of the jurisdiction of the court or if intends to go abroad; [21] (iv) Disqualification affecting husband husband is not entitled to custody of minor wife unless she attains puberty or such age that would permit consummation of marriage. In this circumstance, the mother is the guardian. However, minority of the husband does not deprive him of his right to guardianship.[22] CH-3 (Child custody and guardianship in the West) Noting the fact that western laws are represented and followed to a certain extent by the decisions and law stated in the USA, I have mainly concentrated on the concerned nation for my draft. Due to the heterogeneous demographic structure in the U.S.A.it is very tough to actually make a law that caters to the entire nation without any prejudice whatsoever. In spite of all the legal complications during a child custody trial, all 50 states within the US have statutes that clearly determine the custody rights of a mother. Mothers are often viewed as the primary caretaker and the natural custodian of the child in cases

involving paternity trials. In these cases mothers have the right to file a petition against the father on behalf of the child asking him to prove whether he is the biological and legal father of the child or not. Once the paternity of the father is proven, mother has the right to ask for child support payment on behalf of the child. Apart from this, she can also request the father to pay for the medical and health insurance of the child, share the medical expenses incurred on the birth of the child, pay a portion of the mother's attorney fees and litigation expenses. Courts generally do not support the statement that a father need not pay for the support of the child.[23] Apart from this, in cases where the father does not fulfill his responsibilities pertaining to parenting, mothers have the right to ask the courts to terminate the custody rights of the father. In such cases, the custody rights of the father would be transferred to another person selected by the mother, if the father is found to abandon the child for a prolonged period of time.[24] Mothers can even ask the courts to nullify the visitation and custody rights of the father, if they feel that their children are experiencing physical abuse and domestic violence. In situations where the physical and mental stability of the father is affecting the emotional and psychological development of the child, mothers can file a petition before the court asking for transfer of custody.[25] Following ratification of the United Nations Convention on the Rights of the Child in most countries, terms such as "residence" and "contact" (known as "visitation" in the United States) have superseded the concepts of "custody" and "access". Instead of a parent having "custody" of or "access" to a child, a child is now said to "reside" or have "contact" with a parent. For a discussion of the new international nomenclature, see parental responsibility.[26] Residence and contact issues typically arise in proceedings involving divorce (dissolution of marriage), annulment and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard. Family law proceedings which involve issues of residence and contact often generate the most acrimonious disputes. While many parents cooperate when it comes to sharing their children and resort to mediation to settle a dispute, not all do. For those that engage in litigation, there seem to be few limits.[27] Court filings quickly fill with mutual accusations by one parent against the other, including sexual, physical, and emotional abuse, brain-washing, parental alienation syndrome, sabotage, and manipulation. It is these infrequent difficult custody battles that make the news and sometimes distort the public's perceptions so that appear more prevalent than they are and the court's response appear inadequate. Forum shopping to gain advantage occurs both between nations and where laws and practices differ between areas within a nation, The Hague Convention seeks to avoid this, also in the United States of America, the Uniform Child Custody Jurisdiction and Enforcement Act was adopted by all 50 states, family law courts were forced to defer jurisdiction to the home state. In some places, courts and legal professionals are beginning to use the term parenting schedule instead of custody and visitation. The new terminology eliminates the distinction between custodial and non-custodial parents, and also attempts to build upon the so-called best interests of the children by crafting schedules that meet the developmental needs of the children. For example, younger children need shorter, more frequent time with parents, whereas older children and teenagers can tolerate and may demand less frequent shifts, but longer blocks of time with each parent.[28] Conclusion The main issue dealt with in my draft was who is the natural guardian of the minor what the statute provides, the hierarchy among the two natural guardians, i.e. the father and the mother, the exceptions provided by the statute itself and the principles developed by the courts regarding the guardianship of a minor, Whether in regard to the above issue, the right of a person claiming guardianship is relevant or the welfare of the minor. The main issue discussed is apparent from the draft title, i.e. Womens right to custody and guardianship of children after divorce. As a stark reality, it is still known that women are given much less representation in the society when it comes to custody and guardianship of children after divorce. The comparison with Western laws seems to be on an even keel with material laws when seen on paper but in actuality it represents the paradox of gender consideration in our nation. I am thankful to my respected family law teacher for making the concerned topics more relevant and understanding to me. The courts have been making an effort in the right direction for the representation of women which seems as the possible positive outcome of my draft.

ISLAM

Children are focus of gravity in Islamic Family tradition and law. When spouse are together, upbringing their child(ren) is paramount joint responsibility. Not only physical care and health, but emotional, educational, and religious welfare and well being are mutual responsibility. When spouses separate by divorce or annulment, these welfare responsibilities get also split according to best abilities of each parent. While fathers are vested with financial burden and legal guardianship roles, mothers are given role of physical carer and emotive guardian of child(ren). Inherently, Islamic system balances between multitude levels of child(ren)s need. In recognition of an infants need for female care, all the juristic schools give first preference to a mothers claim to physical custody of her young child provided that she satisfies all the requirements for a female custodian. After divorce during the period of the mothers custody, she is generally entitled to receive custody wages from the father to help her maintain the child. Islamic Jurisprudential inferences Islamic law on custody of children after divorce is based on several hadith relating to how the Prophet sallalahu Alaihe wasallam dealt with cases brought before him. One of the key relevant hadith is the following: According to Amr Ibn Shu'aib, a woman came to the Prophet* and said: 'Truly my belly served as a container for my son here, and my breast served as a skin-bag for him (to drink out of) and my bosom served as a refuge for him; and now his father has divorced me, and he (also) desires to take him away from me.' The Prophet sallalahu Alaihe wasallam said: 'You have a better right to have him, as long as you do not marry again. Hadith: Ibn Majah The mother is recognised as generally the fittest person to take care of the children, because of the instinctive love and tenderness she feels for them and her closer contact with them throughout pregnancy, nursing, and childhood. However, if the mother marries again she would generally forfeit her right to custody. However, the period of female custody ends once the child reaches a certain age of custodial transfer. The Hanbali and Shafii schools do not distinguish between girls and boys regarding the duration of female custody. The Hanbalis maintain that the female custodian should have custody from birth until the child reaches the age of seven, at which point he or she may choose between parents. The Shafiis allow female custody until the child reaches the age of discretion and may choose either parent as custodian. The Malikis rule that female custody of a boy shall last until he reaches puberty, and for a girl until she marries. Under the Hanafi School, female custody of a boy ends when he is able to feed, clothe, and cleanse himself. Most Hanafi jurists set this age of independence at seven years, although some set it at nine. Hanafi jurists differ on when a mothers custody of her daughter ends. Most maintain that the mothers custody ends when the girl reaches puberty, set at either nine or eleven years of age. However, others allow the mothers custody to last until the girl reaches the age of womanhood. Conditions of custody Whoever has custody of a child has to abide by conditions concerning residence and Islamic upbringing, to ensure that the child's welfare is properly cared for. The court may, if necessary, enforce these conditions or direct that the child be given to the next eligible custodian. The father should have access to his children, and he remains financially responsible for their maintenance and education even though they may be under the care of their divorced mother or one of her relations. Duration of custody and Transfers The duration of custody varies between the Four Schools of Islamic Jurisprudence as detailed earlier. There are different criterions for transfer of custody to next eligible candidate as per table below: School of Law Hanafi Transfer trigger Next eligible custodian Next eligible custodian Next eligible custodian

Shafie

Boy: 7 / 9 year age Girl: marriage / 9-11 age 7 years age/ discretion age

Boy: Choice of either parents Girl: Father Choice of either parents

Maliki

Boy: Maturity

Grandmother

Maternal grandmother / paternal grandmother Maternal grandmother / paternal grandmother Maternal

Mothers sister (khala)

Mothers sister (khala)

Paternal

Girl: Marriage
Hanbali

7 years age

Choice of either parents

grandmother / Khala Maternal grandmother / paternal grandmother

grandmother Mothers sister (khala)

Source: Kuwaiti Encyclopaedia of Jurisprudence

Application of Sharia perspective in the West Family courts in the UK and West in general are broadly in conformation with Islamic Law of custody, especially Maliki School. Since current social priorities are child(ren) centred in most aspects so is Islamic Sharia. Other perspectives reported earlier reflect the social trend of the time. For Muftis and Islamic Sharia courts choosing from Maliki perspective is not strange especially if it reflects current social policy trends. Islamic Sharia councils have little control over custodial orders. But they have a balancing act to perform when matters are in Sharia courts. Currently Family courts are overlooking fathers rights and input to child(ren) development. Recent high profile public protests reflect that imbalance in the courts orders. There is extensive lobbying and cry to give fathers significant contacts and say in child(ren) development. All major decisions affecting the life of child(ren) should be taken in consultation with both mother and father even after separation/divorce. General Islamic Sharia principles have major role to play in addressing that balance . Citations from Islamic Law Books on the issue of Custody for Children after divorce: CHAPTER XIV. OF HIZANIT, OR THE CARE OF INFANT CHILDREN. [In case of separation, the care of the infant children belongs to the wife-. If a separation take place between a husband and wife who are possessed of an infant child, the right of nursing and keeping it rests with the mother, because it is recorded that a woman once applied to the Prophet; saying "O Prophet of God ! This is my son, the fruit of my womb, cherished in my bosom and suckled at my breast, and his father is desirous of taking him away from me into his own care;" to which the Prophet replied, thou hast a right in the child prior to that of thy husband, so long as thou dost not marry with a stranger;" - moreover, a mother is naturally not only more tender, but also better qualified to cherish a child during infancy, so that committing the care to her is of advantage to the child; and Siddeek alluded to this, when he addressed Omar on a similar occasion, saying "the spittle of the mother is better for thy child than honey, O Omar!" which was said at a time when separation had taken place between Omar and his wife, the mother of Assim, the latter being than an infant at the breast, and Omar and Omar desirous of taking him from the mother ; and these words were spoken in the presence of may of the companions, none of whom contradicted him :-but the Nifka or subsistence of the child is incumbent upon the father, as shall be hereafter explained. It is to be observed however, that if the mother refuse to keep the child, there is no constraint upon her, as a variety of causes may operate to render her incapable of the charge. AL-HEDAYA Vol. I (Hanafi Manual) [Translated by Charls Hamilton, Published in London 1760) "When a man who takes away his child from his mother, and then divorces her, is obliged to return the child to her. A man having married a woman at Busra, where she bears him a child, takes the child with him to Kufa, and there divorces the mother; whereupon she brings a suit against him for the child, contending that he must bring it back to her. If he took away the child by her own desire, he is not obliged to bring it back, and the woman should be told to go there and fetch it. But if the child was

taken there without the mother's direction, he must bring it back to her. A man goes out from Busra to Kufa taking his wife and child with him, and then sends her back to Busra and divorces her. In such circumstances it is incumbent on him to send the child back to her, and he may be compelled to do so." (Hidayah, vol. I.; Fatawa-i-'Alamgiri, vol. I.; Durru 'l-Mukhtar, pg. 846; Jami'u 'r-Rumuz; Tagore Lectures, 1879; Bailie's Digest, p. 430.) AL-RISALA (Maliki Manual) 33.09 NURSING (RADA') AND CUSTODY (HADANA) OF CHILDREN A woman in wedlock shall suckle her own baby, except where women of her status do not suckle their babies. A divorced woman shall suckle her child at the child's father's expense. And she can take the reward for such suckling if she likes. The custody of children is the responsibility of the mother after divorce. This condition shall remain in force until a boy becomes sexually mature, or until a girl is married away and the marriage consummated. If the mother dies or marries another husband, the right of custody passes into the hands of the grandmother; after her comes the maternal aunt. But if there are more of the mother's maternal relations the right shall pass into the hands of sisters and paternal aunts. And if there are none of these, the right passes into the hands of agnates.

Contesting rights over children

he recent Supreme Court judgement delivered on February 2, 1999 declaring the mother as a natural guardian of her children is hailed as a path breaking one in the realm of Indian family law. (See, Geeta Hariharan vs. Reserve Bank of India, 99(2) SCC, p.228) Many have interpreted it to mean that women will no longer be haunted by the fear of losing custody in matrimonial disputes, as now they are elevated to the status of ?natural guardians?. In my view, this is rather an exaggerated rating of the judgement. The issue of custody had already been decided in women?s favour in many earlier decisions. In the present case, the apex court did not address this issue. The question before the court was a limited one, whether mothers could also be deemed as natural guardians during the lifetime of their husbands. Section 6(a) of the Hindu Guardianship and Minority Act, 1956 (HGMA) stipulated that the father is the natural guardian of the minor and ?after him? the mother. The court reinterpreted the words ?after him? to read ?in his absence? in order to arrive at a harmonious interpretation of the constitutional mandate of gender equality. The court spelt out certain situations - (a) when the father is indifferent towards the child (b) if the child is in the exclusive custody of the mother (c) due to physical or mental incapacity the father is incapable of acting as the guardian (d) when it is decided mutually between the parents that the mother will act as the guardian where - the mother could be deemed as the natural guardian even during the life time of the father. A point to note is that only when the father has abdicated his responsibility or by consent agreed to elevate the mother to the status of a natural guardian would the judgement come into effect. But in keenly contested custody battles, this judgment will not be relevant. The perceived revolutionary impact of the judgement even on this limited question gets diminished in the context of an earlier decision delivered in 1970 (Jijabai Gajre vs. Pathankhan). The principle that a separated wife can be deemed as the ?natural guardian? of her children had already been upheld in this case. An agreement entered into by the mother who had raised her daughter single handed had been validated on the premise that when the father is absent, the mother is deemed as the ?natural guardian?. Several misconceptions govern issues of custody in matrimonial disputes. This article is an attempt to clear some of them. Guardianship implies the proprietorial rights, and custody implies the responsibility of raising a child. While there was a leaning towards the father in issues of proprietorial rights, the mother?s role as caretaker of her children had been granted due recognition for well over a century. To give a brief sketch of the history, the concepts of custody and guardianship in HGMA are derived from the Guardians and Wards Act of 1890 (GWA), which in turn was based on English family law. Soon after divorce was granted statutory recognition in England, in the mid-nineteenth century, separated and divorced wives challenged the ?natural guardianship? of their husbands. It is in this context that the principle that the ?best interest of the child is paramount? started gaining recognition. By mid-twentieth century, the principle became one of the primary pillars of the family law in England. Even a wife who had committed a matrimonial ?fault? could be

awarded custody of the child. The courts held that the aim of matrimonial litigation is not to punish the guilty but only to ensure the welfare of the child. "It is impossible to rule that just because a woman had once committed adultery she was not a fit person to look after her child.? ...?If the welfare of children requires, even an immoral mother can be given custody," the English courts proclaimed. The Guardians & Wards Act, 1890, one of the first Indian statutes to address this issue, incorporated the tension then prevailing in England. While S.19 stipulated that father is the natural guardian of the minor, S.17 prescribed that the welfare of the child is paramount. Despite the wide variations regarding parental right of custody in the diverse personal laws, courts in India have taken recourse to the principle, ?best interest of the minor? to award custody to the mother. The best interest maxim overrides the stipulations in different personal laws and is applied universally in all custody litigations. ?To deprive a child of tender age of its mother?s love and care would not be in the best interest of the child? has been the well established legal doctrine. This concept was awarded statutory recognition under S.6 (a) of HGMA, which prescribed that the custody of a child below five years should ordinarily be with the mother. But this doctrine cannot be extended to imply that once the child is older, the custody will automatically revert to the father, without ascertaining the wishes of the child. Courts do not view the child as an object to be tossed around between the warring parents. Since the child remains unrepresented in matrimonial disputes, it is the duty of the court to ensure that the child?s interests are not harmed or negated. Hence women?s anxiety that once the son enters his teens or the daughter reaches puberty, s/he will be snatched away and placed in the father?s care, against the child?s wishes, are generally baseless. But the ?best interest of the child? doctrine is more complex than it appears on the face of it. When the father is wealthy and the mother has no independent source of income, where would the `best interest? of the child lie? Way back in 1920, in two significant cases, the courts ruled that just because a mother does not have the same financial resources, it does not mean that she should be denied custody of the minor children. The later decisions have reaffirmed this premise. While non-working mothers are haunted by the fear of lack of monetary resources, working mothers are faced with another set of tensions. Would a woman who has paid employment and spends most of her waking hours outside of the home be a better caretaker? Right up to the eighties, the issue remained unresolved. But more recently, it has been held that a mother cannot be denied custody on the basis that she is gainfully employed, and now this reasoning has become an established principle. However, it is rather wishful to presume that the Indian courts would grant custody to a woman who is living in adultery. The decisions on this issue are ambiguous. So while the courts had gradually changed the parameters of awarding custody from ?natural guardian? to ?best interest of the child?, the social institutions lagged far behind, causing endless hardships to women. One institution that consistently humiliated single mothers is the school system. Usually divorce brings about a change of residence for women, and consequently change of school for their children. Women were constantly pressured to obtain their absentee husband?s signatures on school leaving certificates. Banks and passport authorities also remained conservative in their approach and revered the role of the father as the natural guardian. They viewed him as the only parent equipped with the ability and social responsibility to act on behalf of minors. It is in this area that the Supreme Court judgment has brought about a significant change and sent out clear signals that decisions made by the mother are equally valid. A contest over child custody surfaces most often in situations of matrimonial dispute. So long as the spouses are engaged in a harmonious relationship, evidently the question of seeking custody does not arise. In divorce proceedings, the most acrimonious battles revolve around child custody. In view of the legal trends cited above, can it be presumed that all mothers will be awarded custody and all fathers automatically lose custody battles? This presumption is far from the reality. The only governing principle is ?best interest of the child? and the parent seeking custody would have to satisfy the courts on this issue. In modern day battles, neither the father as the traditional `natural guardian? nor the mother as the ?biologically equipped parent? are automatically awarded custody. A legal battle has to be strategised and carried out in civil or family courts. If the child is of tender years, the task is slightly easier. But to secure custody of older, schoolgoing children is more difficult. To answer the question as to who will be awarded custody, the structure and procedures of a civil court have to be kept in view. These become far more relevant than proclamations from the higher judiciary or rights under different personal law. Each case will be decided on its own merit. In most cases, the question of rights gets reduced to evolving an effective legal strategy.

To give an example, Maria had been thrown out of the house, without her two daughters, aged four and one. By the time she approached us, six months had lapsed since the event. She wanted custody of the younger daughter. In order to ensure the custody, we advised her to go to the house and pick up the child with the help of a social agency at a most opportune moment. The strategy succeeded. Within two days, the husband moved the court for custody but so did Maria. The cases were grouped together. On the first day itself an order was passed that neither parent will disturb the custody of the other child. The husband?s advocate flaunted hospital papers of an earlier mental depression suffered by Maria to make her look like an unfit mother. But, this did not influence the judge. After some time, we moved for access of the older child over weekends and holidays, which was granted. Similar access was not granted to the younger child as we argued that at this stage the child is too young. The case came up for final hearing after three years. By this time there was nothing further to do except retain custody with the respective parent. The issue of mental depression had become redundant by then. The court also granted the mother a lump sum maintenance. The custody battle may have been extremely traumatic if the child was not with her during this period. If the mother has left the matrimonial home without the child and not taken any steps to claim the custody of the child for several months, by the time she stakes her claim for custody, the child would have comfortably settled down and the mother may have become only a faint memory. In such a situation, it is highly unlikely that she will be awarded custody. The mother will have to prove gross neglect on the part of father, which is difficult if the child is well settled and happy. At best the mother will be granted right of access or visitation rights. Even this becomes problematic, because by then the child would be tutored against the mother. Ascertaining the wishes of the child also becomes meaningless as children usually reflect the opinions of the elders towards an absentee parent. It is very easy to convince a teenager that her mother is a woman of loose character and has abandoned her for selfish reasons. So despite the positive decisions discussed above, one principle alone will ensure that women are awarded custody that is, to leave the home with the children or in any case to reclaim physical custody with the help of a social agency, the police, or even at their own initiative, before starting the legal battle. Usually women are apprehensive that they may be charged with kidnapping. But it is highly unlikely that a biological parent will be charged with this offence unless, of course, the child comes to harm. If, at the time of taking the custody of the child, a letter is filed with the local police to this effect, it will avert any further complications. The next step is to approach the court and obtain an immediate ad-interim order of custody (temporary custody while the case is being decided) and an injunction restraining the husband from taking away the child. This relatively simple step more or less seals the fate of the matter as in Maria?s case. Knowing the slow pace of our civil courts, it will be at least six months to one year before even an interim application for custody comes up for hearing. By then the child would have been admitted into a new school and would have become accustomed to the new environment. Rarely would a court grant custody to the father, if the child is well settled with the mother. The same principle also applies to a child who is left with the father. Once a legal battle commences, the simple principle followed by the courts is to award interim custody to the parent who already has the physical custody, and award visitation rights to the other parent. This is usually over weekends and school vacations so that studies are not disrupted. Courts tend to believe that the welfare of the child lies in maintaining relationships with both parents. The routine manner in which access is often granted to fathers becomes a cause of panic to most women. While they struggle to make ends meet raising their children against great odds, the fathers can easily win them over by showering them with gifts. While the mothers have the responsibility, the fathers are left with the pleasant task of occasional recreation with the child. Many also fear that the children can be swayed over with the dazzle of money and higher social status. There are no answers to this dilemma. The children too grasp the changed power balance between the parents. They realise that they are important players in the new scheme. Some make use of it, some reconcile to the new equation, and a few get charred in the process. At times when the tension becomes unbearable, women succumb and give up custody rather than face the daily emotional turmoil for themselves and their children. This is a difficult choice, as women?s identify in general, and single women?s in particular, revolves around ?motherhood?. Single women have already abdicated two of the most widely accepted feminine roles, of wife and housewife. All they are left with is the last vestige of femininity in their role as mothers. Abdicating this amounts to self-negation and may even become a social stigma. But those of us who run counselling centres, need to re-examine our own traditional notions of motherhood. Do women opt for custody due to social pressures and internalisation of gender roles? In most cases, husbands are left free of all responsibilities. Even meagre maintenance orders to ensure financial support for women cannot be

enforced. Divorce ends up in the feminisation of poverty. Many women are left to struggle for basic survival in abject poverty. In many situations, the natal family views them with scorn. There is no space for women, leave alone their children. In such situations, the children and women themselves may be better off if the husbands are left with the responsibility of raising the children. This strategy will work only if women are assured of regular access to their children in order to oversee their well being. A vigilant legal strategy is required to ensure this. In the event that the child is found neglected it would be possible to reclaim custody later. But in the present situation, the strategy is worth a try.

This paper explains the evolution and concept of custody and guardianship under the Hindu Law. It points out that the laws continue to be discriminatory and relegates the position of the mother to a secondary status. Divorce of parents proves to be very traumatic on their children. Whatever maybe the differences between the parents, responsibilities towards children cannot be avoided. Determination of custody, child support and alimony have not yet indicated a compliance with non-discriminatory policies. Comparison with Western laws shows that the focus in the west is concentrated on a blend of the welfare and tenderness concept towards furthering the rights of the child and also give an equitable status to the hitherto weak mother. Finally, some of the Indian Law Commissions recommendations are provided which aim at removing discrimination of children, at the same time keeping in mind the welfare of the children. Ram, Ranjini, Divorced women's right to custody and guardianship of children, Cochin University Law Review, Vol.22, pg. 392-408,1998