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Custody Of Legitimate And Illegitimate Children: The Mother’s Rights.

Custody of child shall be handed over to such a person who fosters him with care, love and affection.[1]

– Honourable Justice Vinod Prasad

1. INTRODUCTION:

Child custody is a term used in family law courts to describe legal guardianship of a child under the age of eighteen. Right of custody of their children is a major concern for women facing domestic exploitation. Owing to the fear of losing custody of their children, many women continue to live in vicious relationships bearing all sorts of ill treatment and are afraid of taking legal remedy to end the violence. Earlier the provisions of Hindu Minority and Guardianship Act (HMGA)prefer father as the natural guardian. Thus, there is a belief prevalent in society that the children belong to the husband and his family and the woman has no claim over them and that her role is restrained to only taking care of them. While leaving their matrimonial home, women are often warned that they will not be able to get custody of their children and threatened, they will not be even able to meet their children. But over the years, due to unceasing struggle from the women’s movement in our country, the laws have changed and today the women are considered as the joint natural guardian and primary care taker of her children.

2. CHILD CUSTODY AND PREVAILING LAWS:

In India, primarily the child custody cases are governed by the following acts and laws:

  1. Guardians and Wards Act, 1890
  2. Sectiontion 38 of Special Marriage Act,1958
  3. Sectiontion 26 of Hindu Marriage Act,1955
  4. Hindu Minority and Guardianship Act, 1956
  5. Hindu Adoption and Maintenance Act, 1956
  6. Custody under Muslim Personal Law (Shariat).

The Guardians and Ward Act, 1890 gives comprehensive power to the court to decide in the disputes regarding the guardianship of children. This is termed as “legal custody” of a child. When it comes to the question of custody of a child, the courts will consider the welfare of the children as paramount and appraise the following options before them either on its own motion, considering the facts and circumstances of the case, or based on the plea of the petitioner. 

  1. Sole Custody: Either of the parent will be the sole caretaker of the child.  Generally, people resort to court intervention in order to claim their right to Secure the sole custody of the child.  Laws in our country favour father in this matter considering the fact that they are the natural guardians, breadwinners and economically better fitted in taking care of the child in his/her education, health and day-to-day livelihood.

However, a mother can seek sole custody of her child and can also win a case if she proves that:

  1. Thefather happens to be an abusive person; or
    1. The father is unfit, to raise a child.[2]
  2. Third Party Custody: If courts take a view that permitting the custody of a child to either of the parent would be prejudicial to the interest of the child or both the biological parents are deprived of child custody, the child custody is granted to a third person by the court (such as grandparent, other relative, or a family friend).[3]

Recently, Madurai Bench of Madras High Court, considering the fact that the father has got remarried within six months following the death of his first wife and never claimed the custody of his child for four years, has granted the custody of the child to his grandparents.[4]

  • Joint Legal Custody and Shared Physical Custody: There are instances where courts held the children to stay both with father and mother by splitting time.  But the legal custody vests with one of the parent.[5]
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The Guardians and Wards Act, 1890 is the collective law applied to issues involving child custody and guardianship in India, irrespective of the child’s religion, custom or practices. However, underneath Sectionular principles, India also authorizes laws pertaining to different religions to which the minor belongs to[6].

3. MOTHER’S RIGHTS IN HINDU LAW:

The Hindu Minority and Guardianship Act, 1956 and Hindu Marriage Act, 1955 are the enactments applicable to a mother who belongs to Hindu, Buddhist, Sikh or Jain by religion. The mother usually gets custody of the minor child, under the age of five. Above the age of five and below the age of eighteen the father was considered as a natural guardian under Sectiontion 6(a) of Hindu Minority and Guardianship Act, 1956andSectiontion 19(b) of Guardians and Wards Act. As these Section infringes right to equality, The Guardianship and Wards Act was amended and the custodial rights of mother and father was made at par[7]. In Roxann Sharma v. Arun Sharma[8]it was also made clear that any provisions in the Act do not disqualify the mother in the matter of custody if the child crosses the age of five years. Thus, custody will be given based on child’s best interests. Above the age of nine the choice of the child is considered. If the mother is proven to ill-treat or neglect the child, she will not be given custody.

4. MOTHER’S RIGHTS IN THE CUSTODY (HIZANAT) OF CHILDREN UNDER MUSLIM LAW:

The Quranic verses do not fix the age limit for the custody of child. But in the moral domain, it is specified in the Quran that the mother should breastfeed her offspring for two entire years[9]. This moral ruling in the ethical sense implies that the custody in the first instance belongs to the mother. The Hanafi School (Sunni Law) entrusts the mother to have custody of her daughter until she attains puberty and of her son till he is seven years of age,[10] while the Shafi’i and Maliki school (Shia Law) entitle the mother to have custody of a female child until her marriage and of her son till he has attained the age of puberty[11].The right of the mother to the custody of her children (Hizanat) continues even when she is divorced by the father of her children except in cases where,

  1. she marries a person not related to the minor within the prohibited degree[12] (e.g. a stranger, but the right revives on death or dissolution of the marriage); or,
  2. If she resides at a distance from the father’s place of residence during the subsistence of the marriage or neglects her children (this is not an absolute proposition it will be decided based on the circumstances of the case e.g. If the stay is temporary or due to situations out of her control); or,
  3. Fails to take care and leads an immoral life (e.g. prostitute or by the change of religion).[13]

The Muslim law of Hizanat states that the very basis of custodianship is the welfare of the child. This is the reason Muslim law gives preference to mother over the father in custody of tender children. On the chance that the mother isn’t alive or not proficient or is missing, the custody of a boy under 7 and a girl underneath pubescence goes to other female relatives of the child.

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They are in order of priority-Mother’s mother, Father’s mother, Full sister(same mother and father), Uterine sister (Half Sister from same mother but Different father), Consanguine sister(Half Sister with common father), Full sister’s daughter, Uterine sister’s daughter, Consanguine sister’s daughter, Maternal aunt, Paternal aunt[14].

If none of the aforesaid relations exist, the custody of the child then passes to the males. The father is among them, first arranged by need and after him the fatherly relations take the custody of the child.[15]

The custody issues of Christian and Parsi children are determined by the universal law viz., the Guardians and Wards Act, 1890 read with Part XI (Section 41 TO 44) of the Indian Divorce Act, 1869 and by Section 49 of the Parsi Marriage and Divorce Act, 1936 respectively.

5. CUSTODY OF ADOPTED CHILD:

Adoption builds up a legitimate parent-child relationship. Thus, any pronouncements regarding child custody for an adopted child will be made in the exact same way it is being decided for biological child of the couple being separated.[16]

6. MOTHER’S RIGHT IN THE CUSTODY OF ILLEGITIMATE CHILD:

According to Hindu Marriage Act, 1955 a child born of void marriage, voidable marriage, illicit relationship, marriage which is not valid for want of proper ceremonies, and through concubine is considered an illegitimate child (Section 11, 12). Section 6 of Hindu Minority and Guardianship Act, 1956, states that the mother is the characteristic guardian of an ill-conceived boy or an ill-conceived unmarried girl, and the dad’s case of guardianship comes simply after hers. There are merely two exceptions to this rule –either the women cease to be a Hindu or completely renounces the material world becomes a hermit (Vanaprastha) or an ascetic (Sanyasi).

A child born out of live in relationship is also considered under this category and the custody belongs to mother[17]. Under Mohammedan law the custody of the illegitimate child is given to the mother and her relations until the age of seven[18] and above the said age it depends on the child’s choice .Father is not entitled to have the guardianship or the custody of the minor illegitimate children.

Hindu Minority and Guardianship Act as well as Mohammedan law, gave the sole authority of the illegitimate child to the mother, but what happens to the custody of the illegitimate child belonging to neither of these two religions?

This was solved in the ABC v. The State (NCT of Delhi)[19] case, where a Christian unwedded mother, who had applied for the custody of her child in the district court under Section 7 of the Guardianship and Ward Act, was directed by the court to send a notice to the father of the child under Section11 of the concerned Act. An appeal against it was filed by her in the Delhi High Court, testifying the fact that the father was not aware of the child and that he was not in interaction with them, henceforth she does not wanted to divulge the identity of the child’s father. Her appeal was rejected on the basis of Section 19 and Section11 of the Act, stating that it is necessary to send a notice to the father, as the natural father might be concerned about the welfare and custody of the child even if there existed no marriage.

Later she appealed to the Supreme Court, where the decision of the trial court and the H.C. of Delhi was set aside and verdict was given in favour of the women on July 2015 .Thus any unwedded mother can legally claim her child’s custody for the interim duration unless the child’s biological father brings forth any objections[20].

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7. CONCLUSION:

India has ratified the U.N. Convention on the Rights of the children on December 11, 1992 thus THE PRINCIPLE; the best interest of the child is paramount. (Enshrined in the United Nations declaration of the rights of the child) is relied upon by Indian courts while determining the parental rights for the custody of the children. The very nature of the custody orders is interlocutory.[21]If the child is happy with the mother, the mother will not be deprived of the custody of her child even upon remarriage. [22]Even the Jamaat or the local panchayat cannot force the mother to give up the custody of her child. Devoid of this legal position, if any such arbitral or lop-sided orders are made by these local bodies, the victim need not comply with the order, rather approach appropriate authorities to secure custody of her child under the Domestic Violence Act and protect her rights.


[1] Master Shobhit v. State of Uttar Pradesh and others, W.P.No.9721 of 2011(India).

[2] (Observed in Mrs. Annie Besant v. G. Narayanaiah, AIR 1914 PC 41(India);  Kamalamma v. Laxminarayana Rao, AIR 1971 Mysore 211(India).

[3] L. Chandran v. Venkatalakshmi and Anr AIR 1981 AP 1(India).

[4] HC grants custody of child to grandparents, The Hindu, (Feb 03, 2018, 13:55), https://www.thehindu.com/news/cities/Madurai/custody-for-grandpa/article20925067.ece.

[5]Kumar Jangirdar v Chetana Ramatneesha, (2001) 4 S.C.C.682 (India); Yashita Sahu v State of Rajasthan & Ors. (2020) 3 S.C.C 169(India).

[6]Sectiontion 6 of the Guardians and Wards Act, 1890, No. 3, Acts of Parliament, 1890(India).

[7]Geetha Hariharan v Reserve Bank of India, (1999) 2 S.C.C.228 (India).

[8]Roxann Sharma v. Arun Sharma, (2015)8S.C.C.318 (India).

[9]Al Quran, SurahBakre,Chapter 2, verse 232.

[10]Law commission of India,Reforms in Guardianship and Custody Laws in India, Report no. 257 (May 2015).http://lawcommissionofindia.nic.in/reports/Report%20No.257%20Custody%20Laws.pdf.

[11]Id.

[12]Rahimakhatoon v. Saburjanesa, M.A. (F) No.119 of 1993(India).

[13]Begam v Malka Ara Begam, AIR, 1948 All 198(India).

[14] M.MullahPrinciples of Mohammedan Law292 (19 ed. 1990).

[15]Aqil Ahmad, Mohammedan Law227 (15 ed. Academic books Publishers, 1992).

[16]AmbikaPandit, CARA: Adopted child has rights equal to a biological child, cannot be denied any benefit under law, Times of India (Sep 18, 2019, 23:07), https://m.timesofindia.com/india/cara-adopted-child-has-rights-equal-to-a-biological-child-cannot-be-denied-any-benefit-under-law/amp_articleshow/71191123.cms.

[17]Tabassum Jahan, Custody of Children Under Different Legal Systems: A Comparative Study, Department of Law Aligarh Muslim University (2013), at P. 41, Para 2.

[18]M.Hidayatullah, Principles of Mohammedan Law292(1993).

[19]ABC v. The State (NCT of Delhi),(2015)10 S.C.C 1 (India).

[20]Id.

[21]VikramVir Vohra v. ShaliniBhalla, (2010)4S.C.C.409 (India).

[22] Athar Hussain v. Syed Siraj Ahmed, (2010)2S.C.C. 654(India).

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Author

Santhiya P.
Student - SASTRA Deemed to be University