Minor child Custody

[Dr. Ashok Dhamija]

As per the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956, it is specifically laid down that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The relevant extract from this section is as under:

“6. Natural guardians of a Hindu minor.—The natural guardians 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 ordinarily be with the mother; …”.

Interpreting this section, recently, in the case of Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318, the Supreme Court held as under:

“Section 6 of the HMG Act [Hindu Minority and Guardianship Act] is of seminal importance. It reiterates Section 4(b) and again clarifies that guardianship covers both the person as well as the property of the minor; and then controversially states that the father and after him the mother shall be the natural guardian of a Hindu. Having said so, it immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The significance and amplitude of the proviso has been fully clarified by the decisions of this Court and very briefly stated, a proviso is in the nature of an exception to what has earlier been generally prescribed. The use of the word “ordinarily” cannot be overemphasised. It ordains a presumption, albeit a rebuttable one, in favour of the mother. The learned Single Judge appears to have lost sight of the significance of the use of the word “ordinarily” inasmuch as he has observed in para 13 of the impugned order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of Parliament or the legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.”

“The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the likelihood of the welfare and interest of the child being undermined or jeopardised if the custody is retained by the mother. Section 6(a) of the HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this section or for that matter any other provision including those contained in the G and W Act [Guardians and Wards Act, 1890], does not disqualify the mother to custody of the child even after the latter’s crossing the age of five years.”

From the above, it should be clear that the custody of a minor child of age less than 5 years is required to be given to the mother, except in some exceptional situations. Moreover, the Supreme Court has clarified that even after the age of 5 years, the custody of minor can be given to mother and she is not disqualified in this regard.

In view of the above, since your son is only 3 years old, you have the right to seek custody of your son in case you apply for divorce. Ordinarily, the custody of this minor son will be given to you in your capacity as mother. If needed, you can file an application under the provisions of the Guardians and Wards Act, 1890, for getting custody of the child. If needed, you can also seek an interlocutory order under Section 12 of the Guardians and Wards Act for temporary custody of your son during pendency of the above application. Section 26 of the Hindu Marriage Act, 1955, is also relevant in this regard for passing interim orders during pendency of the divorce petition relating to custody and maintenance of children.

The answer to your question is that you can definitely seek maintenance for your minor son from your husband. Section 125 of the Cr.P.C. enables that. Section 26 of the Hindu Marriage Act, 1955, is relevant for this purpose also (for maintenance of children).

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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