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Child Custody : Mother or Father
by Nadir Modi,
Advocate, Bombay

When marriages break up, bitter and prolonged battles often follow over the custody of minor children.

More often than not, the custody of minor children particularly of children under 7, is given to the mother. Questions such as whether she is psychologically fit to rear the child or whether the psychological growth of the child will be better if the custody is given to the father, raise relevant factors to which more judicial attention could be usefully given.

The modern tendency in child custody cases is to avoid any decisions based on any a priori assumption that for the welfare of the child the custody should be given to the mother. Increasingly judges show understanding and compassion in their decisions and have moved away from the earlier pattern of judgments which unwittingly tended in the words of Dr Arnold A. Hutschnecker to be cruel, stereotyped and void of any genuine psychological awareness of the child's needs or interests.

A few Indian decisions show how the much spoken of paramount welfare of the child has been safeguarded by the custody of minors being given to the fathers and their families.

In Shoib @ Shebu v. Sabir Ali1 the Allahabad High Court while conceding the entitlement of the mother the custody of her male child until he has completed the age of seven years held that the welfare of the child would be kept in view before deciding the custody. In that case in fact the son who was only 4 years of age was allowed to remain with the father and the Court without arriving at any adverse conclusions regarding the mother's character or conduct decided that it was in the paramount interest of the 4 year old son to allow him to remain with the father and the father's family.

In Bilkis w/o Munne Khan v. Munne Khan2, a Mohammedan wife who was living separately from her husband filed a petition for custody of her minor son aged about 2 1/2 years. It was found that she was residing at a distance from the husband's home and neglecting the child even when their relations were cordial. On these facts the court held that it was not in the interest of the welfare of the child though the child was of tender years to give his custody to the wife. Custody of the child therefore was given to the father.

In Y. Varalakshmi v. Kanta Durga Prasad3, the Division Bench of the Andhra Pradesh High Court gave custody of 5 year old boy to the father in the interests of the child. The child had been happily residing with the father and his parents when the mother had applied for custody. The trial court refused custody to the mother and the appeal court upheld the refusal.

This decision contrasts favourably with the fictional decision in the much talked about movie, Kramer v. Kramer, where the father and not the mother was bringing up the son aged about 6 years. In the film, the husband, a young, ambitious vice-president of a company, is not aware of the emotional needs of his very attractive wife. In her quest for ''fulfillment'', she chooses to leave her husband and her young child with seemingly no previous quarrel. She goes to California, sees a psychiatrist, enters fresh liaisons and after about two years returns to New York to sue for custody of her son. The Judge proceeds on the patently erroneous basis that it should be routine procedure to award the custody of a child to a mother, whether she is psychologically fit to rear the child or not.

The Judge awards the mother the custody of the child, a decision that is depicted in the film, as cruel and void of humanity. The mother is at first triumphant. But then comes a dramatic change of heart. Perhaps seeing the pain of the defeated ex-husband (or is it a flash of guilt or magnanimity), she allows the child to stay with the father.

This film as commented on by Dr Hutschnecker, reflects a modern trend that corrodes, if not the sanctity of marriage, then at least a deeper meaning of a commitment.

Why did this woman marry this particular man? His looks? His future that seemed secure? Did she use him for a start in her own life? And why did she not talk to him if she left dissatisfied? Both were educated people. Why, instead of trying to communicate and come to an understanding, did she, like an angry and irresponsible child, run away to satisfy her own selfish needs? Was it for survival or simply an ego tussle or a power play?

True, the man pursuing his own American dream was so busy building his career that he perhaps did not notice his wife's dissatisfaction. Evidently they did not communicate and thus were unaware of each other's needs and feelings.

It is the story of many people who thought they were in love, which dynamically means they move towards one another. But contrary to usual experience, when people begin to fall out of love, for whatever reasons, they move against one another. That is, they either fight or make adjustments. In the film they move away from each other - a breaking away or, symbolically death!

It is heartening to note that Indian Courts in many respects show a greater awareness of human needs and do not blindly or short-sightedly follow the ''mother first'' principle while deciding custody cases.

In Lekh Raj Kukreja v. Smt Raymon4, the Court was concerned with the question of the interim custody of a minor male child aged 11 years. The trial court gave the custody to the mother on the ground that the minor son would then be in the company of his sister whose custody was with the mother.

In revision it was held that the father was the natural guardian and that the welfare of the child also demanded that he should be in the custody of his father especially as the child himself also showed an inclination to stay with the father.

On the same lines, in Tara Chand Mavar v. Basanti Devi5, the Division Bench of the Rajasthan High Court in appeal reversed the decision of the Family Court giving custody of a 7 year old minor son to his mother stating that sentimental considerations in favour of the mother ought not to prevail over the welfare of the minor where the father was a fit person to be a guardian and in the opinion of the Court it was in the interest of the minor son that he should be with the father and the father's family.

In Shailaja J. Erram v. Jayant V. Erram6 once again the same question was decided by a Bench of the Bombay High Court in the same manner. In this case the mother was a working woman and remained outside the home until 4 p.m. The minor - a son - expressed his desire to reside with his father. The Court found that the minor was getting his education properly and that the aged parents of the father were in a position to look after the minor for the whole of the day. In these circumstances the Court came to the conclusion that the welfare of the minor demanded that he should be with the father and his family and not with the mother.

It is not intended to suggest that in every case, or in most cases, it is in the interest of the minor that he should remain with the father and his family. Any such proposition would be as unjust and unsupportable as the opposite proposition viz. that in every case, or in most cases, the custody of the minor should remain with the mother.

There can be no general presumption to the effect either that the female of the species is deadlier than the male, or that she is more beneficent than the male when it comes to the question of the custody of these unfortunate minors.

In each case it is a question of fact, and should be a matter of anxious consideration for the Court as to where the welfare of the child lies. The Indian Courts' approach has therefore to be welcomed.

  1. 1986 (II) DMC 505 at 506 (All, HC) Return to Text
  2. 1987 (32) M.P.L.J. 430 Return to Text
  3. (1989) 1 DMC 379 Return to Text
  4. 1989 (38) DLT 137 Return to Text
  5. 1989 (1) DMC 402 (Raj) Return to Text
  6. 1990 (2) Mah LR 492 Return to Text
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