CUSTODY

In the war between the parents it is the children who are the casualties. Parents engrossed in their war of egos should not forget their responsibility towards their children. This was apparently what prompted, Justice A.N.Sen, a Supreme Court judge, to observe,

“The husband and wife are the persons primarily responsible for bringing the children into this world and the innocent children become the worst victims of any dispute between their father and mother. Human beings with frailties common to human nature may not be in a position to rise above passion, prejudice and
Weakness…for very many reasons, it may unfortunately be not possible for the husband and wife to live together and they may be forced to part company. Any husband and wife who have irreconcilable differences, forcing them to part company, should have enough sense to understand and appreciate that they have their duties to their children. In the interest of their children who they have brought into existence and who are innocent, every husband and wife should try to compose their differences”

A rift in marital relations is fraught with severe consequences to the welfare of the children. It is for this reason that the welfare of the minor children is given paramount consideration when courts make any orders concerning them or affecting them in any way.

Power and duties of the courts:
Provisions have been made in law to safeguard the interest and welfare of children. All relevant provisions relate to minor children i.e. children below 18 years of age because, on becoming a major, a child has the right to decide which parent he/she wants to live with. The question of custody of children is dealt with in the Hindu Marriage Act, and the Indian Divorce Act and the Special Marriages Act.
Under the Hindu Marriage Act the courts have the two-fold power to
a) pass interim orders from time to time during the pendency of proceedings before it;
b) To make provisions in the decree passed.

Duties:
a) The court has the power to make an order of custody of child during the
Pendency of any matrimonial proceedings, be it for judicial separation,
divorce etc. Such orders are generally made in presence of the parties.
b) In any matrimonial suit where it becomes necessary to determine the rights
of the children, the courts may pass interim orders making provisions relating
to custody, maintenance and education of the minor children. If it thinks fit, it
may also, pass orders to place such children under the protection of the
courts.
c) While passing these orders, the wishes of the children will be given due
importance.
d) During the pendency of the proceedings or even after the decree is passed, if there are any changes in circumstances, the parties may petition the courts seeking modification of an order previously made. The courts may accordingly, revoke, suspend or vary any such order as and when time and need dictate.

Rights of the mother:
In any matter relating to the custody of children, where the child is below 5 years of age, it is usually the mother who is given custody because a child of such tender years requires constant attention and love and it is usually the mother who is in a position to provide such care.
In some cases where it is proved that the mother cannot take such care the father will be given custody.
But a woman does not lose custody of her child merely because she has remarried if she can show that the remarriage will not affect the child adversely.

Observation of the Supreme Court:
Sec. 6 of the Hindu minority and guardianship act says that father is the natural guardian and the mother will be considered only after him. However, the Supreme Court while deliberating the case of Sarita Sharma Vs Sushil Sharma (2000) 3 SCC 14 observed that “Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. But that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor.”
The Supreme court also observed that siblings should be brought up together as far as possible.
A mother who can show that she can provide her children (male or female) with a decent living in a wholesome atmosphere can get custody of the children because eventually, it is the duty of the court to act consistently with wishes of the children and in their interest.

In any matrimonial case the children are the worst hit, caught as they are in the crossfire between their parents. Given their age and the helpless situation, they suffer emotionally and socially without any mistake on their part. The courts do everything they can while aiding them in their transition to a single parent family. That is the reason their wishes are given paramount consideration while passing any order as to their custody, maintenance and education or any other matter concerning them.