The “Guardian” and Welfare of Child

Separation of the sacred bond between the husband and wife is a complex as well as time consuming process.  Owing to the nature of this relationship, legal separation is never easy.  But this becomes all the more difficult when there is a child, especially a minor child involved.  This is because then, there opens the pandora’s box of deciding which of the parents does lie the custody of the child!!!!!

Interpretation of the legislative intent

With the intent to consolidate and amend the law relating to guardian and ward, the legislature enacted the Guardians and Wards Act, 1890 (“Act”) which is the fundamental piece of legislation which is sought reference of by the court for deciding matters relating to the custody of the child.. Hence, before commencing the discussion on how guardianship is decided by the court, it is imperative to understand the meaning of certain key terms as have been defined under the Act. A “guardian” means a person having who takes care of a minor or of his property or both the minor and his property.  Similarly, “minor” means a person who has not attained the age of majority as per the Indian Majority Act, 1875.

Judicial approach to the relationship of guardian – minor-

Matters of custody of the minor child help to determine with which parent the child will reside post the divorce of his parents. Nonetheless, despite declaration of a parent to be guardian of child, both the parents remain the natural guardians of the child.

Before understanding the judiciary’s take on this, the parent who gets the custody of the child becomes responsible for the educational, emotional as well as medical needs of the child, while the non-custodial parent gets the right of visitation.

The judicial approach for determining the parent eligible to get the custody of the child has undergone a commendable transformation.  For instance, in Rosy Jacobvs. Jacob A. Chakramakkal reported as 1973 SCR (3) 918, while adjudicating upon the issue pertaining to the custody of the child, the Hon’ble Supreme Court, adopting a traditional approach requested the parties to keep aside their differences as husband and wife and instead focus on providing their child with the most congenial atmosphere for his upbringing.

Although as per the Hindu customs, it is the mother who is considered to a child’s natural guardian, nevertheless, the Act makes the father his natural guardian. The Kerala High Court even sealed this with its judgment in Essakkayal Nadder vs. Sreedharan Babu reported as AIR 1992 Ker 200. But it was in the case of Jajabhai vs. Pathankhanreported as AIR 1971 SC 315, that the court held that where the mother and father lived separately and if the mother took care of the daughter, then she could be assumed to be the natural guardian in spite of the presence of the father.  This was further reiterated in the landmark judgment of Githa Hariharan vs. Reserve Bank of India reported as

AIR 1999 SC 1149 where the court held that the phrase ‘father and after him the mother’ does not mean that after the lifetime of the father the custody should go to the mother.  If for some reason the father is unable to shoulder the responsibility of the child, then the mother can become the child’s natural guardian. Restricting the mother from becoming the natural guardian can result in the violation of one of the most fundamental principles of our constitution, which aims at achieving gender equality. This along with couple of other judgments laid down a precedent that a child, at least until the age of five years must reside with his mother simply because at that tender age the child is heavily dependent on the mother.

Moving from this precedent and going to a very rational and reasonable approach which the courts have also adopted in certain cases, is focusing on the child and assessing what will suit him the best. For instance, in the case of Nil Ratan Kundu and Anr. vs. Abhijit Kundu being Civil Appeal No. 4960 of 2008 (Arising out of Special Leave Petition (Civil) No. 1243 of 2008), the Hon’ble Supreme Court observed that there has been a shift from custody and access being the ‘right of a parent’ to being the ‘right of a child’. Further, the court also emphasized that custody must be decided depending upon what is in the best interest and welfare of the child. Parent who can provide the child with sound opportunities for achieving his social, educational child’s emotional and medical needs must be zeroed in as the child’s natural guardian. This view received further support in the recent judgment written by the Hon’ble Supreme Court in Roxann Sharma vs. Arun Sharma being Civil Appeal no, 196 of 2015 [Arising out of Special Leave Petition (Civil) No. 32581 of 2014].

The road ahead…

As compared to rigid approach of going as per what has been mentioned under the Act and deciding the custody of the child accordingly, the main aspect which needs to be addressed is to understand which of the two parents is in a better and sound condition to provide the child with all the necessary facilities which are required for his/ her upbringing.  The Hon’ble Supreme Court, being Parens Patriae, has finally put a step in the right direction and hopefully will continue to do so in times to come.