Child Custody under Hindu Law: Key Legal Principles

The custody of children in marital disputes under Hindu religion is governed by The Hindu Minority and Guardianship Act, 1956. It applies to all of India.

Legal Framework for Child Custody under Hindu Law

The Act defines Natural Guardians of a Hindu minor in section 6 of the Act as follows: –

1. In case of a boy or unmarried girl: The father and after him the mother. Also, a minor who has not completed the age of 5 years shall ordinarily be with the mother.
2. In case of an illegitimate boy or an unmarried girl: the mother and after her, the father.
3. In case of married girl: the husband.

Above rights as in section 6(a) are not absolute.

Welfare Principle in Hindu Child Custody Cases

The controlling consideration governing the custody of the children is the welfare of the children and not the right of the parent.

Welfare is not determined by wealth or emotional concern alone. Courts must consider all factors to decide what’s best for the child but the conscientious considerations of all these factors and determining what is best for the total well-being of the child.

Courts usually grant custody of the child to the mother as being the pivot of the family, a duty that she fulfils so admirably. Unless the father proves otherwise. 

Also, it is a acceptable fact that father has to go out to earn and therefore, unable to attend child. The court gives custody of the child to the mother, the father must provide maintenance of child and contribute financially for the development of child.

Alternative Custody Arrangements

If the court is satisfied that both father and mother are incompetent and incapable to give a healthy environment for the growth and well-being of child, the court may grant custody to any of the near relatives, to whom the child has attachment.

Thus, the custody of child depends on who is competent to contribute more to the well-being & growth of the child.

In some cases, courts preferred the father when the mother showed neglect or lived a careless lifestyle.

Parent Alienation Syndrome (PAS)

Recently, the Supreme Court of India laid down the concept of Parent Alienation Syndrome (PAS) in the light of child custody dispute in the case of Col. Ramneesh Pal Singh Vs Sugandhi Aggarwal.

The main concept of PAS is a syndrome where one parent with the child’s custody exists, create, and promote the feeling of disliking & disaffection against the other parent on the child, influencing his/ her mind to have preference of only one parent during the litigation in court for the custody.

The apex court relied on the decision of English court which said “Parental Alienation is not a syndrome capable of being diagnosed but a process of manipulation of children, perpetrated by one parent against the other through what are termed as ‘alienating behaviors’. It is fundamentally, a question of fact.”

Judicial Caution in PAS Cases

The Supreme Court stated that custody decisions should not rely on precedents alone. The child’s welfare is the main concern while pronouncing the guardianship.

Child Welfare encompasses child’s ordinary comfort, contentment, health, intellectual development, favorable surroundings, inculcating moral & ethical values.

The Supreme Court cautioned subordinate courts not to jump to conclusions without identifying the individual contentions and declare them as the perpetrator of the Parental Alienation Syndrome (PAS).

CASE REFERENCES:

• Lahari Sakhamuri (Supra)
• Tejaswini Gaud V Shekhar Jagdish Prasad Tewari (2019)

Want to know more?
Check out our in-depth article on Child Custody and Parenting and naming a nominee vs. writing a will to understand related family law issues.

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