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LegalUp’s Snippy: This is a landmark case where the Apex Court of India said that despite equal rights, a mother is more competent to take care of the young child as it is the time when kids need utmost care and support. Hence the custody of very young children should be given to the mother.

Introduction

case brief

Separation of parents affects the family and the children to a great extent, which affects the mental state of the child, including the child’s future upbringing. In such sensitive cases, the interest of the minor is paramount and any day towers the statutory rights of the parents. Now, these types of issues are governed by different religious laws but the Guardians and wards act, 1890 is the law that is applied. For the Hindu religion, the major laws applied are the Hindu Minority and guardianship act,1956, and the Hindu marriage act, 1955. Bench: Vikramajit Sen, C. Nagappan.

As per the recent Panjab and Chandigarh, high court judgment cheating on the spouse cannot be used against the mother in the disputes of child custody as the relationship of a spouse is very different from that of the child-parent relationship. Furthermore, the mother’s moral character cannot be questioned or brought into the disputes of the child’s custody.

Facts

The case revolves around Roxann Sharma and Arun Sharma who married each other in the United States of America and conceived a child whom they named Thalbir Sharma. After a certain period family returned to India and began to reside in Mumbai. It was also observed that the husband and wife had differences with one another and had already filed an application to dissolve the marriage after which an application was given under the Hindu Minority and Guardianship act, 1956 to get the custody and guardianship of their son Thalbir Sharma. For the time when other matters like divorce and domestic violence were sub judice, an application was filed seeking an order restraining the transfer of custody of the child to his father. Similarly, the respondent also applied for the custody of the child whereas an order was passed by the honourable trial court in favour of the plaintiff for the time being. Whereas when the matter went for an appeal, the honourable high court reversed the order and wrote in favour of the respondent which transferred the custody of the child to the father for the interim period. Following this, the mother challenged the high court order in front of the supreme court. Some important factors had to be kept in mind pertaining to the matter of custody which was that the mother of the child was suffering from a Bipolar disorder, whereas the father being jobless was also an alcoholic. The plaintiff also argued that the custody of a child below 5 years of age should generally be with the mother. The respondent also contested that the mother did not have any permanent address in India.

Issue

Whether the custody of a minor child can be given to the father and can the mother be restrained from taking custody of the child afterwards?

Judgement

The Hon’ble Supreme court adjudicated a landmark judgment in this case and said that the custody of a child younger than five years should be given to the mother unless the father of the child proves otherwise and establishes that if the custody is given to the mother it would interfere in the growth of the child. The court also observed that the “ordinarily” which is used in section 6(a) of the Hindu Minority and Guardianship Act, 1956 is an assumption in favour of the mother but with an option of rebuttal.

This also indicates that the onus of proof is on the father to prove otherwise. The supreme court also noted that the competence of a father to raise a child is only checked when there is a doubt on the competence of the mother, in this case, the father was jobless, alcoholic, and also a drug addict due to which he had joined a drug rehabilitation. The court also ruled that the HMG act, 1956 gives the father a right over the property but not over the child younger than 5 years. Here it was also said that no law or provision snatches the right of custody from the mother. Mother being educated and having a job as a professor in California could provide for the child and would be able to cater to the child’s interests also the Bipolar disorder was not specifically proven in the court.

SC appointed a social worker Mrs Sapute to prepare a daily report of both of them with the child whereas she expressed concerns for her safety from Mr Arun Sharma and the SC ordered Mr Arun to not directly contact her. Considering the facts Hon’ble SC passed the judgement giving the custody of Thalbir Sharma to the mother.

Conclusion:

Dealing with the issue of custody of a child the supreme court pronounced that both the parents have equal right of custody of their child but at an early age according to section 6(a) of the HMG Act, 1956 mother will get custody of the child as children at this age to require the utmost amount of care which is more suitably provided by the mother.

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