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  • Shreya Sinha


Debashrita Manik, 1st Year, KIIT School of Law, KIIT University


A child is always a boon and the apple of the eye to its parents but however, after divorce both the parents want the custody of the child in favour. The honorable court never sees the prosperity of the parents but the child to whom it matters. The court apportions physical custody to those who have parental skills, adequate financial security, a peaceful environment, and mental well-being for better growth and development of the child. The one getting the legal custody of the child is the one owing to the growth, development, physical and mental welfare of the child while the other one not getting the custody has certain visitation rights. Custody of a child to a single parent is one of the toughest decisions, therefore taking in prior caution with all the viewpoints in and out with full care and attention, the court pronounces the judgment because the future of a child is at risk which depends upon the judgment.


Indian laws have always stated that both the parents have equal rights for the custody of the child but however, according to Section 6(a) of the Hindu Minority & Guardianship Act, 1956, the custody of the child with ripe age should be given to the mother of the child. This act is often interpreted as discrimination between father and mother in connection to custody rights, but this is not the thing, because according to Article 14 of the Indian constitution, discrimination, which has a reason or object behind to achieve is permissible. In such cases, a child at a tender age can only be taken care of by its mother than anyone else, therefore the discrimination against the father is valid because it shows some reason or objects to achieve, which is the well-being of the child.


Not necessarily, the custody of a child is always given to its mother. If the minor is old enough to choose its preference and form an intelligent opinion then the court shall consider its preference. In some cases the custody of a child is also given to its father, keeping in mind all the factors required for earning the custody. In the memorable case of Mridangara J. Hira Lal Suchak VS. Neena M. Suchak, the custody of the child was given to the father and the mother got the visitation rights as it was the interest of the welfare of minor Rinku to be in the custody of his natural guardian and his father, the appellant. Sentimental consideration is never an excuse so as to choose the custody of the child, but the welfare of the minor in determining its custody to their father or mother. The court always pronounces the judgment keeping in mind only the welfare of the child. The court further says that the child should be treated as chattel and the father should be treated as a natural guardian. In some cases, even though the child prefers his mother for his own custody then also the court has to dismiss the same provided if the father proves that the mother is unfit or unstable for the welfare of the child. This can also be done at the tender age of the child. This exception comes under Section 6(a) of the Hindu Minority and Guardianship Act, 1956. If the mother is proven ‘unsuitable’ i.e., abusive, neglected, improper employment, failed to provide proper care to the child; then the custody automatically goes to the father, may the age of the child be tender or minor.


The battle of custody is the most unfortunate part of divorced families. The benefits of sole custody can be wide-reaching but there are also disadvantages for the same, particularly to those who do not receive it.[1] The non-custodial parent’s visitation to the child at intervals may affect his or her relationship with the child.