Minor child Custody

[Prisha Bharti]

I had a love marriage way back in Nov.2011 after a relationship of
about 3 years. My husband being a very aggressive and conservative
person started domestic violence right after four months of marriage
which includes both physical and verbal abuse. We both are working and
have a 3 yrs old child. I kept on forgiving him after each instance of
DV just for the sake of my son and just to keep this marriage alive
which i think was the biggest mistake i made. i left my job during 7th
month of pregnancy and joined work when my son was 7 months old. My
son’s paternal grand-mom didn’t help us in anyway in raising my child
and she was staying in another city. My own mother took care of my son
all these years while i was at work. My husband has never been an
appreciative person. Always using bad language both because of his own
aggressiveness and family culture. I am from a very dignified family
and completely aloof of such male dominating and woman suppressing
culture. Now my husband has get hold of my some chat with a colleague
over gmail which was done on pure fun basis as that guy is a friend of
mine. But we are into no extra marital affair at all. That chat can be
called a healthy flirt only. No ‘I love You’ or ‘ i miss You’ was
exchanged. He did some flirting and response from my side was
positive. But no content was obscene. Infact he took images of that
chat. But that image doesnt have my name anywhere.

Now my question is what are my prospects of child custody after
divorce in this case. I dont want to remarry ever. Divorce is not
filed from any side till now.

My husband has dragged me out of home and I am living with my parents.
He has called his mother to his place and now she is taking care of my
son during daytime and my husband leaves the child to my parents’s
place during night and takes him back during day as both houses are
just 3 km away. Despite of the fact that I am asking for continued
forgiveness he is not ready to settle down things. He is just asking
for more and more time to cool off but instead he is turning into a
wild beast with each passing day as in shouting and bad language. He
has become quite disrespectful to my parents also who have always
treated him like his son. As I am working i dont want any alimony for
myself or but I want my husband to pay for expenses of my son as he
has used all my income till date for some or the other purpose and now
Iam left with just one month salary in my account.

[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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