Child custody and visitation under Indian family law

The Guardians and Wards Act, 1890 is the general statute. Section 7 allows the court to appoint a guardian where it is satisfied that the appointment is for the welfare of the minor. Section 9 directs an application about guardianship of the person of the minor to the District Court in whose jurisdiction the minor ordinarily resides.

For a Hindu child, the Hindu Minority and Guardianship Act, 1956 applies alongside. Section 6 names the father as the natural guardian and, after him, the mother, with a proviso that custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Section 13 makes the welfare of the minor the paramount consideration in the appointment or declaration of a guardian.

Where a matrimonial case is pending or has ended in a decree, Section 26 of the Hindu Marriage Act allows the court hearing that case to pass interim and final orders on the custody, maintenance and education of the child. A Family Court established under the Family Courts Act, 1984 hears custody and access applications under Section 7 of that Act.

The petition should state where the child lives, who has day-to-day care, the child's school, and the arrangement the parent proposes. Jurisdiction under Section 9 of the Guardians and Wards Act turns on where the minor ordinarily resides, so the place of residence should be set out with dates.

Indian courts decide custody by the welfare of the child. In Gaurav Nagpal v. Sumedha Nagpal, the Supreme Court held that the paramount consideration is the welfare of the child and not the rights of the parents under a statute. The Court also said that welfare is not to be measured by money alone or by physical comfort.

Section 17 of the Guardians and Wards Act lists the matters a court considers when appointing a guardian: the age, sex and religion of the minor; the character and capacity of the proposed guardian; the nearness of kin; the wishes of a deceased parent; and any existing or previous relation of the proposed guardian with the minor. The section also allows the court to consider the preference of a child old enough to form an intelligent one.

The inquiry is fact-heavy. Courts look at who has provided daily care, the child's schooling and stability, the capacity of each parent, and any history of neglect or violence. Income matters less than the ability to provide a stable home.

Section 6 of the Hindu Minority and Guardianship Act provides that the custody of a child who has not completed five years shall ordinarily be with the mother. In Roxann Sharma v. Arun Sharma, the Supreme Court held that the proviso creates a rebuttable presumption in favour of the mother for a child under five, and that a father who seeks custody must prove that the mother is unsuitable. The Court also said that a child is not a chattel or a ball that is bounced to and fro the parents.

The word ordinarily leaves room for exceptions. If the mother cannot care for the child, or if the child's welfare requires another arrangement, the court can depart from the presumption. The father remains a natural guardian under Section 6, but guardianship and custody are different questions. Guardianship concerns legal authority over the child's person and property. Custody concerns where the child lives day to day.

Above the age of five, no statutory preference applies and the court decides on the facts. The child's own preference can be considered under Section 17 of the Guardians and Wards Act as part of the welfare inquiry, and its weight grows with the child's age and maturity.

During proceedings, courts make interim orders under Section 26 of the Hindu Marriage Act or under the Guardians and Wards Act. These orders cover where the child lives, interim custody, and access. Section 26 also allows the court to revoke, suspend or vary its orders after the decree.

Visitation is part of the welfare inquiry. In Yashita Sahu v. State of Rajasthan, the Supreme Court held that the non-custodial parent should have sufficient visitation rights, and that denial is justified only in extreme circumstances with reasons recorded. The Court also said that courts should define the nature, manner and specifics of visitation rather than leave an arrangement vague. It referred to telephone, email and video calls as forms of contact.

A visiting schedule works better when it is specific: weekends, school holidays, festivals, drop-off and pick-up times, and the place of exchange. Supervised visitation may be ordered where there are concerns about the child's safety, with a named supervisor or a contact centre.

The parent caring for the child should not treat visitation as a concession. Denial of court-ordered access can lead to an application for enforcement, and a pattern of denial is a fact a court will weigh in later custody proceedings. Visitation also protects the child's relationship with both sides of the family.

Custody orders are not final. Section 26 of the Hindu Marriage Act allows the court to vary or reverse an order. Section 25 of the Guardians and Wards Act allows a guardian to apply for the return of the ward where the welfare of the ward requires it. The welfare principle also allows a fresh application when circumstances change.

A change application needs new facts: a relocation, a change in schooling, a parent's illness, a new job with different working hours, or a concern about care. A court will not reopen custody because one parent has a better income. The comparison is between two homes, not two salaries.

The application should set out the change, the evidence for it, and the order sought. School records, medical records and a report from a child welfare professional can help. Interim custody and visitation usually continue until the application is decided, so a parent should comply with the existing order while challenging it.

India is not a signatory to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. When a parent removes a child from another country to India, or keeps the child here, an Indian court decides the case on welfare, not on the foreign order.

The Supreme Court has treated a foreign custody order as one factor among others. The practical questions are where the child was living, the child's schooling and social ties, the circumstances of the removal, and which home can provide stability. A foreign order does not displace the welfare inquiry.

A parent planning to relocate with a child should seek an order permitting the move, or the written agreement of the other parent, before travelling. Where a case is already pending, the application should be made in that proceeding so that the court has the full record.