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Whenever there is a dispute between the parents, it is the child who suffers the most, mentally and physically. The married couple gets parted, but the question of the custody of the child remains to be determined.
As per section 6(a) of the Hindu minority and Guardianship act, 1956 states that:-
6. Natural guardians of Hindu minor.- The natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are-
(a) in the case of a boy or an unmarried girl- the father, and after him the mother: provided that the custody of a minor who has not completed the age of five years shall ordinary be with the mother.
According the above said provision of the Hindu Minority and Guardianship act, 1956, if the child has not completed the age of 5 years it shall remain within the custody of the mother but, in case titled Nil Ratan Kundu & Anr Vs. Abhijit Kundu 2008(3) RCR (Civil) 936 the Supreme Court observed that such cases cannot be decided solely by interpreting legal provisions. Such matter is a humane problem and is required to be solved with human touch. A Court while dealing with custody cases, is neither bound by statues nor by strict rules of evidence or procedure nor be precedents.
Where a child is removed from a country, other than India, and is brought back to India from the country where the parents of such child have built their matrimonial home, by one of the parent outside the jurisdiction of the court of the country from where the minor was removed. In such a scenario the Indian Courts have the jurisdiction to entertain such custody matter and decide whether the custody matter should be dealt summarily or order the parent to return the custody of the child to the country from which he/she was removed, leaving all aspects relating to child’s welfare to be investigated by Court in his own country.
The Indian Courts also appreciate that it is important for the child to have care and guidance of both mother as well as father at such formative and impressionable stage of life. Therefore, it is the duty of the court to decide as to where the child will grow at the best and in whose custody the child should be left with and ought to give visitation rights to the other parent.
Jurisdiction:
Every High Court has the jurisdiction for entertaining the writ petition of Habeas Corpus where the minor ordinary resides.
In Ruchi Majoo Vs. Sanjeev Majoo 2011 AIR SC (Civil) 1570 the Supreme Court, regarding the jurisdiction held that What is important is that so long as the alleged detenue is within the jurisdiction of the High Court no question of its competence to pass appropriate orders arises. The writ court's jurisdiction to make appropriate orders regarding custody arises no sooner it is found that the alleged detenue is within its territorial jurisdiction.
Comity of Courts:
While dealing with the custody of child orders the courts should keep the principle of comity of courts in consideration. In Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987)1 SCC 42 while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, - which were independently considered - it was in the interests of the child to be sent back to the native State.
CRITERIA FOR DECIDING THE CHILD CUSTODY is that the court should take the welfare of child at paramount consideration and then decide the custody.
The Indian Courts have concluded that the custody of the child should be decided keeping the welfare the child at paramount consideration. In Case titled Sarita Sharma Vs Sushil Sharma, 2000(2) RCR (Criminal) 194 the Apex Court took the consideration of welfare of the minor child. The relevant lines are reproduced below: -
Considering all the aspects relating to the welfare of the children, we are of the opinion that in spite of the order passed by the Court in U.S.A. it was not proper for the High Court to have allowed the Habeas Corpus writ petition and directed the appellant to hand over custody of the children to the respondent and permit him to take them away to U.S.A. What would be in the interest of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the respondent to initiate appropriate proceedings in which such an inquiry can be held.
In Shilpa Aggarwal (Ms.) v. Aviral Mittal & Anr., 2010(3) RCR (Civil) 433 the Supreme Court followed the same line of reasoning as above said. This was a case arising out of a habeas corpus petition before the High Court of Delhi filed by the father of the child. The High Court had directed the return of the child to England to join the proceedings before the courts of England and Wales failing which the child had to be handed over to the petitioner-father to be taken to England as a measure of interim custody leaving it for the court in that country to determine which parent would be best suited to have the custody of the child. That direction was upheld by the Supreme Court with the observation that since the question as to what is in the interest of the minor had to be considered by the court in U.K. in terms of the order passed by the High Court directing return of the child to the jurisdiction of the said court did not call for any interference.