OVERVIEW
1. The court’s jurisdiction for a custody case is determined by the minor’s “ordinary residence”. This is primarily a question of intention, which can be a mixed question of law and fact.
2. Interim custody can be ordered by the court for the protection of the person or property of the minor. The court’s decision on interim custody is guided by the welfare of the children.
3. The examination of the child by the court can be important to ascertain his/her wish as to whom they want to stay with. This is particularly relevant in custody cases involving a tender-aged child.
4. The term “custody” in Section 25 of the Guardians and Wards Act, 1890, includes both actual and constructive custody.
5. The Hindu Minority and Guardianship Act, 1956, provides for the natural guardianship of a minor. In the case of a boy or an unmarried girl, the natural guardian is the father, and after him, the mother. However, the custody of a minor who has not completed the age of five years should ordinarily be with the mother.
The Hindu Minority and Guardianship Act is supplemental to the Guardians and Wards Act, 1890. When no specific remedy is provided under the Hindu Minority and Guardianship Act, the provisions of the Guardians and Wards Act become applicable.
I. INTRODUCTION
Under Indian law, the welfare of the child is of paramount consideration when determining the issue of custody. The Guardians and Wards Act, 1890, and the Hindu Minority and Guardianship Act, 1956, provide the statutory framework for custody issues in India.
II. JURISDICTION
The appropriate jurisdiction to file a custody petition is the place where the minor ordinarily resides. This is determined under Section 9 of the Guardians and Wards Act, 1890.
III. RELEVANT LEGAL PROVISIONS
Under Section 12 of the Guardians and Wards Act, the court may make orders for temporary custody and protection of the person or property of the minor. The court’s guiding principle is the welfare of the child.
Additionally, Section 17 of the same Act provides for the court to take into account the child’s wishes if they are old enough to form an intelligent preference. This could include the child’s preference to live with you.
Under the Hindu Minority and Guardianship Act, 1956, Section 6 provides the father is the natural guardian of a minor boy, and after him, the mother. However, the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
IV. APPLICATION PROCESS
Unfortunately, I was unable to find a comprehensive guide on the specific application process for a father seeking custody in India. However, it is likely that it involves filing an application or petition in the relevant court with a detailed explanation of the reasons for seeking custody, including:
1. Demonstrating the child’s “ordinary residence” to establish the court’s jurisdiction.
2. Providing evidence of the child’s welfare being at risk under the mother’s care.
3. Stating the child’s preference, if applicable and if the child is old enough to form an intelligent preference.
4. Providing any other relevant facts or evidence to support your case.
V. EVIDENTIARY REQUIREMENTS
These would typically include documentation and evidence supporting the claims made in your application, such as:
1. Evidence of the child’s ordinary residence.
2. Evidence that the child’s welfare is not being taken care of by the mother.
3. If possible and applicable, evidence of the child’s preference.
4. Any other supporting documentation or evidence that would support your claim for custody.
BIBLIOGRAPHY
- SCC Online. “Jurisdiction in child custody cases under Guardians and Wards Act, 1890”. Retrieved from: www.scconline.com.
- SCC Online. “Interim custody/Temporary custody under Guardians and Wards Act, 1890”. Retrieved from: www.scconline.com.
- SCC Online. “Importance of child’s preference in determining custody under Guardians and Wards Act, 1890”. Retrieved from: www.scconline.com.
- SCC Online. “Concept of Constructive Custody under Guardians and Wards Act, 1890”. Retrieved from: www.scconline.com.
- SCC Online. “Applicability of Hindu Minority and Guardianship Act in addition to the Guardian and Wards Act”. Retrieved from: www.scconline.com.
- SCC Online. “Natural Guardian under Hindu Minority and Guardianship Act, 1956”. Retrieved from: www.scconline.com.
- SCC Online. “Custody of a Hindu child aged below 5 years under Hindu Minority and Guardianship Act, 1956”. Retrieved from: www.scconline.com.
- SCC Online. “Case: Harsh Deep Singh vs Nandita Singh”. Retrieved from: www.scconline.com.
- SCC Online. “Case: Maiya Waugh vs Kamal Waugh”. Retrieved from: www.scconline.com.
- Legal Service India. “Custody under Hindu, Muslim, Christian And Parsi Laws”. Retrieved from: www.legalserviceindia.com.
- Ministry of Law and Justice, India. “The Muslim Women (Protection of Rights on Marriage) Act, 2019”. Retrieved from: www.legislative.gov.in.
