Introduction

The divorce or separation of parents can create substantial turmoil within the family and greatly affect the well-being of the children involved, leading to potential long-term consequences for their mental health and future parenting abilities. In such delicate circumstances, it is crucial to prioritize the best interests of the child, placing them above the legal rights of the parents. Numerous religious laws now address these concerns, including Hindu law, which is governed by section 6 of the Guardians and Wards Act, 1890. In cases pertaining to the Hindu religion, key legislations such as the Hindu Minority and Guardianship Act, 1956, and the Hindu Marriage Act, 1955, specifically under Section 26, come into play.

The laws pertaining to child custody and guardianship are intricately connected. Guardianship encompasses the rights and authority of adults concerning the person and property of a minor, while custody specifically addresses the day-to-day care and upbringing of the child. In Indian family law, be it secular or religious, the term “custody” lacks a precise definition.

To illustrate the topic we will be discussing in this case analysis, let’s consider a notable judgment by the Punjab and Haryana High Court in Chandigarh. The court ruled that cheating towards a spouse cannot be used as evidence against the mother in disputes regarding child custody, as the spousal relationship differs significantly from the parent-child relationship. Additionally, the moral character of the mother should not be questioned or brought into the discussions surrounding the child’s custody. In the present case, we will focus on a specific legal case concerning child custody under Hindu Law.

Facts Of The Case

The case revolves around Roxann Sharma and Arun Sharma, a couple who got married and had a child named Thalbir Sharma while residing in California, United States of America (USA). Subsequently, the Sharma family returned to India and settled in Mumbai. It came to light that the husband and wife had experienced a falling out, leading them to file an application for the dissolution of their marriage. Alongside this, they also sought custody and guardianship of their son, Thalbir Sharma, under the Hindu Minority and Guardianship Act, 1956.

During the pendency of other legal matters, such as divorce and domestic violence, an application was submitted to the court to prevent the transfer of custody of the child to his father. Simultaneously, the respondent also applied for custody, resulting in the trial court initially granting the plaintiff’s request. However, upon appeal, the Bombay High Court reversed the order and ruled in favor of the respondent, granting temporary custody of the child to the father. Subsequently, the mother challenged the High Court’s decision before the Supreme Court.

Several significant factors needed to be taken into account regarding the custody matter. It was revealed that the mother suffered from Bipolar disorder, while the father was unemployed and struggled with alcoholism. The plaintiff argued that custody of a child under the age of five should generally be awarded to the mother. On the other hand, the respondent countered that the mother did not possess a permanent address in India.

Legal Issues Raised In Present Case

1. Whether the father can be given the custody of a minor child?
2. Whether the mother can be restrained from taking the custody of the child afterwards?

Court’s Reasoning In This Case

The Honourable Supreme Court, in its observations, highlights the importance of judicial prudence when interpreting laws related to the transfer or determination of custody in cases involving infants. The court emphasizes the necessity to prioritize the welfare and best interests of the child before reaching a decision. In instances of matrimonial dissolution, it is vital to explore avenues for resolving the issues through counselling or alternative dispute resolution methods, especially when a child is facing health challenges. The court firmly upholds the paramount significance of the child’s well-being in all disputes arising from divorce proceedings.

The court stresses that, unless substantial evidence is presented to demonstrate that the mother is unfit or poses a risk to the child’s well-being, it is generally considered crucial for a child below the age of five to be under the care of the mother for their proper upbringing. The term ‘ordinarily’ should be interpreted broadly, with a leaning towards favoring the mother. In the specific case at hand, the court observes a lack of recorded evidence supporting the claim about the mother’s bipolar disorder. The court acknowledges the child’s welfare and comfort in the mother’s custody, who is the appellant and holds a Master’s degree in Arts from the University of Howard. Presently employed as a professor in California, she earns a monthly salary that plays a vital role in ensuring the child’s well-being.

The court duly recognizes the mother’s educational background and employment as significant factors. It is noted that her profession as a professor provides a substantial income, which is essential for adequately meeting the child’s needs.

The court’s observation confirmed that the respondent, who is the father of the child, was unemployed and struggling with alcoholism at the time. It was also established that the father had been a drug addict and was receiving treatment at a Narcotic and Rehabilitation center. The court further ruled that both parties involved in the dispute must surrender their passports until further orders are issued. The appellant (mother) was granted permission to stay in the State of Goa for an unspecified period. During the ongoing proceedings, the court granted the mother temporary visitation rights as mutually directed and agreed upon. The Maharashtra State Legal Service Authority recommended the appointment of a social worker, which the court deemed advisable. The court received the report from the diligent efforts of the social worker, which revealed the initial hesitation displayed by the child (Thalbir) towards the mother’s approach. However, this reluctance quickly faded, indicating the natural love, affection, and motherly bond. The court recognized that the hesitation may have arisen due to various factors and deemed it inappropriate to view it with suspicion.

Court’s Judgement In The Present Case

In a landmark judgment, the Honorable Supreme Court ruled that custody of a child below the age of five should generally be awarded to the mother, unless the father can demonstrate otherwise and establish that granting custody to the mother would hinder the child’s development. The court also observed that the term “ordinarily” used in Section 6(a) of the Hindu Minority and Guardianship Act, 1956, is an assumption favoring the mother, but it can be rebutted.

This implies that the burden of proof rests on the father to present evidence to the contrary. The Supreme Court further noted that a father’s competence in raising a child is only assessed when there are doubts about the mother’s competence. In the present case, the father was unemployed, struggled with alcoholism, and was a drug addict, necessitating his participation in a drug rehabilitation program. The court clarified that while the Hindu Minority and Guardianship Act, 1956 grants the father rights over property, it does not extend to children under the age of five. It emphasized that no law or provision deprives the mother of her right to custody.

Additionally, the court advised and directed Mrs. Deepali Ajay Satpute to assist and support both parties, the appellant and the respondent, in matters concerning their son. Mrs. Satpute, in her report, highlighted threats made by the respondent, Arun Sharma, and urged the court to take appropriate action. Considering the report submitted by Mrs. Deepali Satpute, the court prohibited and restricted Arun Sharma from contacting the appellant directly or indirectly, including through any family member of the respondent. In conclusion, the court allowed the appeal of the respondent (mother), awarded custody of the child to her, and disposed of all related appeals.

Analysis And Conclusion

Regarding the issue of child custody, the Supreme Court has ruled that both parents have an equal right to the custody of their child. However, as per Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the mother is typically granted custody when the child is of minor age (below 5 years). This decision is based on the understanding that young children require a significant amount of care, which is generally provided more suitably by the mother.

The aforementioned case highlights that child custody under Hindu laws in India takes into account several factors to determine the custody of the child. However, the ultimate consideration is always the paramount welfare of the minor child. This encompasses aspects such as education, maintenance, nutritional requirements, and more.

• Vikram Vir Vohra v. Shalini Bhalla, AIR 2010 SC 1675: 2010 (4) SCC 409
•  Guardians and Wards Act, 1890, s 6
•  Hindu Marriage Act, 1955, s 26
•  Law Commission of India,”257^th report on Reforms in Guardianship & Custody Laws in India,(May, 2015)
•  Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 : (2015) 4 SCC (Civ) 87, 17-02-2015
•  Hindu Minority and Guardianship Act, 1956, s 6(a)
• Sivaraman, Court trends in child custody, available at https://jcil.lsyndicate.com/wp-content/uploads/2016/09/Child-Custody-Paper-N-Srivasan.pdf
• Dr. Paras Diwan, Family Law, Allahabad Law Agency, India, 2021