Guardianship and child custody

Proceedings about a child are decided on a different footing from the matrimonial dispute around them. The parents' conduct towards each other matters only so far as it bears on the child. The wider matrimonial dispute, maintenance and domestic violence remedies are covered in the practice on matrimonial and family matters.

The two statutes

The Guardians and Wards Act, 1890 applies to all communities. It lets a court appoint or declare a guardian of the person or property of a minor, and section 12 lets it make interim orders for the protection of the child or the child's property while the petition is pending. Section 17 lists what the court considers in appointing a guardian: the age, sex and religion of the minor, the character and capacity of the proposed guardian and his or her nearness of kin to the minor, the wishes of a deceased parent, and any existing or previous relations with the minor or the minor's property. If the minor is old enough to form an intelligent preference, the court may consider it.

The Hindu Minority and Guardianship Act, 1956 supplements the 1890 Act for Hindus. Under section 6 the natural guardian of a Hindu minor boy or unmarried girl is the father and, after him, the mother, with a proviso that the custody of a minor who has not completed the age of five years is ordinarily with the mother. Section 13 states that the welfare of the minor is the paramount consideration. A natural guardian cannot, without the previous permission of the court, mortgage, charge, sell, gift or exchange the minor's immovable property, or lease it beyond the limits the Act sets. For Muslim, Christian and Parsi children the rules on who has a preferential claim to custody come from the applicable personal law, but the court still decides under the 1890 Act and the child's welfare remains the test.

Welfare of the child

Courts in India have repeatedly held that welfare, not the legal right of either parent, controls custody. In practice that means the court looks at the child's age and needs, continuity of schooling and home, the child's health, the capacity of each parent to provide care, and the child's own wish when the child is old enough to express one. Welfare is assessed on the evidence in the case, and a parent's legal entitlement as natural guardian is one factor, not a presumption that ends the inquiry.

Interim custody and visitation

Interim custody is often the real contest, because the arrangement made in the first months tends to shape what follows. An application under section 12 of the 1890 Act is heard on affidavits and, where needed, after the court speaks to the child in chambers. Courts commonly settle access in stages, for example supervised meetings, then weekend and vacation access, then overnight stay, and revise the schedule as the child's circumstances change. No statute lays down a visitation formula, so the order depends on the child and the facts. Orders are open to variation on a change of circumstances.

Procedure before the Family Court in Bengaluru

Where a Family Court has been established for the area, section 7 of the Family Courts Act, 1984 gives it jurisdiction over guardianship of the person and custody of or access to a minor, and the Bengaluru Family Courts hear these petitions where the child ordinarily resides in their territorial limits. The stages are the petition, notice and written statement, an attempt at settlement through the court's counselling and mediation facilities (section 9 requires the court to assist and persuade the parties towards a settlement where possible), evidence and a hearing. A Family Court is not bound by the strict rules of evidence and may follow its own procedure. An appeal from a Family Court judgment lies to the High Court under section 19, within thirty days, and no appeal lies against an interim order. Matters that arise elsewhere in the State go to the Family Court or District Court that has jurisdiction.

Habeas corpus and the High Court

Where one parent has taken or kept a child, a writ of habeas corpus before the High Court of Karnataka under Article 226 of the Constitution is a recognised route, and the Supreme Court is open under Article 32. The writ is not a custody trial. The court examines whether the child's present custody serves the child's welfare, and it may decide the question summarily or direct the parties to the Family Court for a full inquiry, depending on how recently the child was removed and how settled the child has become. Section 25 of the 1890 Act is the statutory remedy for the return of a ward who has left or been removed from the guardian's custody, and the two routes can overlap.

Where one parent lives abroad

A custody dispute with an international element raises three recurring questions. The first is jurisdiction: Indian courts act on the child's ordinary residence and presence within their territory. The second is the effect of a foreign order. Indian courts treat a foreign custody order as relevant, and give weight to the principle of comity, but are not bound by it, because the child's welfare as the Indian court finds it remains decisive. The third is the child's removal from or to India, which turns on the existing orders, the consent of the other parent and any travel restriction a court has imposed. India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, 1980, so a return order is not available under that Convention and the question is decided on the child's welfare.

What the stages need

A guardianship petition needs proof of the child's age and residence, of the relationship of each party to the child, and of the child's schooling, health and daily arrangements. An interim or access application needs a clear statement of the arrangement sought. A habeas corpus petition needs the facts and dates of removal. A cross-border matter needs copies of any foreign order, with the facts on which it was made.