• Anupama Soumya


By- Gargi Dhang, Vth BA LLB (Hons.) student at National Law University and Judicial Academy Assam.

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"A person's a person, no matter how small" once said, Dr. Seuss. It shows the importance of childhood and keeps the child on a par with an adult. The court always forward to "The best interest of the child" as after the parents are separated, it is the child who is left behind to suffer the worst. Several times the courts have taken the responsibility to interpret the guardianship and custody law in a manner to ensure the best interests of the child are protected.

Divorce means the legal dissolution of a marital bond[1] that affects not only the whole family but also the children who become vulnerable to traumatic experiences and bear the pain of seeing their family disintegrating and a line drawn between their parents.

A child, as a human being, has been identified by law as a legal object. The word 'child' has been defined in Article 1 of the Convention on the Rights of the Child (CRC), which states that "every human being below the age of 18 years unless, under the law applicable to the child, the majority is attained earlier."[2]

Custody and access, has shifted from 'right of a parent' to 'right of a child' and is decided considering the child's emotional, educational, social and medical needs to be undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies but still there remains ambiguity in the concept leading to competing interpretations. The prime concern is to help the children grow and develop, and accomplish their potentials together with correlated responsibilities of parents and social institutions towards those needs.[3] As per the CRC in all steps taken under article 3, the best interest of the child is required to be the chief determinant[4] ; also, a child may be separated from his/her parents if there has been "abuse or neglect of the child by the parents.

According to the UNHRC (United Nations Human Rights Commission), the best interests of the child are a proxy given by the Convention for the well-being of a child based on several conditions.[5]

Children become the innocent victim of divorce as the parents start fighting over issues like child custody, support, and visitation and when they grow up to become teenagers or adults, they face problems in carrying their relationships and face trouble with self-respect, the reason being that they haven't seen their family carry out relationships happily. Even many children, especially pre-schoolers (children below the age of 9 years), start blaming themselves, assuming that perhaps they are the reason for the divorce between their parents and have replacement fantasies. Adolescents (children between the age of 9 and 13 years) become more independent and on their own in matters of their life; males become aggressive whereas females become anxious, withdrawn from the society, and become sexually active at a younger age.

Often children have to shift to another home and many times to a different school, and they will neither see nor be with their mother and father at the same time, or they will not get to see their friends due to a new city. Often such children are usually stigmatized in the community and do not get equal status like other children to get. An emotionally stressed child can also commit any criminal act and lead to acute depression, suicidal ideation, and sometimes violent, acting out episodes and various other harmful things. A child has not experienced much in his/her life and has a soft heart created by God, needs support on every facet of life; otherwise, the emotional and behavioral distress create negativity about their potential marriage prospects and lessen their living standards and well-being.

Economically speaking children of a divorced couple do not get the benefit of joint-income of their parents as the single parent has to look after the house, due to this the standard of living and well-being is further affected, more likely to gain lesser educational achievement, therefore procure fewer earnings and the monetary hardships if consistent and long-lasting, might result into having a long-term effect, once the children are prevented from holding in exercises that are necessary for their development, both cognitive and social.

As regards child's custody the court decisions based on the best interest of the child[6] and the other times a mature kid explicitly, expresses his will to the court to stay with someone or hand over his custody to someone as we've seen in the case of Meenpushpa v. Ananthan Jayakumar,[7] where the child wanted to be with his grandparents.

Article 39(f) of the Constitution of India lays down the responsibility of the State to frame a policy securing the children. The provisions under Article 15(3) and Article51-A(k) also voice the rights of the child.

Under Hindu law, the Hindu Minority and Guardianship Act, 1956, govern the issues of custody and guardianship under the Hindu law. The definition of 'natural guardian' is defined under section 6(a) of the Act in the case of an unmarried girl or of a boy as the father and after him the mother.[8] The father cannot become the custodian of the child even if he is the natural guardian. Courts can pass orders concerning custody, maintenance, and education of minor children, in accordance with their wishes.[9]

Under Muslim law, the Muslim Personal Law (Shariat) Application Act, 1937,[10] applies in Hizanat, and the mother has the primary right to custody, and the father is the sole guardian. The custody of the minor girl remains with the mother till she attains puberty, and for boys, this right is extended till the age of seven. A mother cannot be deprived of this right unless she is disqualified because of apostasy or misconduct, and her custody is found to be unfavorable to the welfare of the child.

The court applies the criteria of the best interest of the child in their custodial arrangements as per Guardians and Wards Act, 1890[11] , which is a secular Act and guardianship in communities other than Hindu and Muslims are governed by this Act, which lays down that the father's right is primary. Section 4(2) of the Guardians and Wards Act, 1890 defines a guardian to be a person having the care of the person of a minor or of his property or both his person and property.

The Divorce Act, 2000, provides the law of custodial arrangements for children among Christians. In the case of Parsi, Section 49 of the Parsi Marriage and Divorce Act, 1936[12] , and Section 41 of the Indian Divorce Act, 1869[13] courts are authorized to decide the interim custody of children.

United Nations Convention on the Rights of the Child (UNCRC), an international effort to promote the basic needs of children as fundamental human rights, is a remarkable and wonderful gift to the children, which is given a 'go by' by our current legal system.

The "Best Welfare of the Child" is the utmost consideration in the proceedings of custody to ensure the child's future safe and protected, regardless of altering familial circumstances. In the case of Carla Gannon v. Shabaz Farukh Allarakhia,[14] the Bombay High Court held while determining the final decree, the best welfare of the child should be the paramount consideration, irrespective of the various contentions of the parents. The Apex Court in the case of Nil Ratan Kundu v. Abhijit Kundu,[15]has held that the term "best welfare" of a child shall not be measured merely in terms of money or physical comfort. Instead, it must be taken in the sense that the tie of affection cannot be disregarded.

On 6th July 2015, the Apex Court in ABC v. The State (NCT of Delhi)[16]set up a precedent by stating that an unmarried mother must be recognized as the legal guardian of her child, and she cannot be forced to disclose the identity of her child's biological father. The Karnataka High Court, in KM Vinaya v. B Srinivas,[17] held that both the parents are entitled to get "joint custody for the sustainable growth of the minor child."

Rebuffing the current adversarial and "winner-take-all" approach where children's' essential needs are often overlooked, and their safety, security and primary attachment relationships are thrown at risk, I am of the view that shared parenting must be encouraged where the responsibilities must be oriented according to the children's interests. The social institutions like court must share the responsibility of supporting the parents towards the fulfillment of their parental responsibilities, instead of undermining them.


[1] Available at: (June 25, 2020). [2] UN Convention on the Rights of the Child, article 1 (1989). [3] Kusum, FAMILY LAW LECTURES, FAMILY LAW I, 4th ed. 2015 pp. 335. [4] Convention on the Rights of the Child, Art. 3, (1989). [5] UNHRC, UNHRC Guidelines on Determining the Best Interests of the Child, (2008). [6] Mausami Ganguli v. Jayant Ganguli, (2008) 7 SCC 673 [7] AIR 2004 Mad 1. [8] Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228. [9] Hindu Marriage Act, 1955 Section 26. [10] Muslim Personal Law (Shariat) Application Act, 1937 Section 2 . [11] The Muslim Women (Protection of Rights on Divorce) Act, 1986. [12] Parsi Marriage and Divorce Act, No. 3 of 1936, Section 49 [13] ndian Divorce Act, No. 4 of 1869, Section 41. [14] Criminal Writ Petition No. 509 of 2009. [15] (2008) 9 SCC 413. [16] AIR 2015 SC 2569. [17] AIR 2013 SC 102.

(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)