Vincent
Asked January 07, 2014

Child Custody: Best interest Doctrine

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With the divorce rates increasing I've noticed a lot of ugly "child custody" cases coming up. Most judgments I believe grant the custody in favour of a child apparently after looking into what would amount to the "best interest of the child"? I want to know: 1. How to determine what amounts to a child's "best interest"? for eg, a child might complain that the mother is too strict because she asks him to study while the father doesn't ever ask him to so so? What i mean is that, there could be circumstances where the child might hate to be with the strict parent but perhaps in reality such discipline is necessary for the overall development of the child. How does the court arrive at a conclusion of what "actually amounts to the child's best interest"?

Answer 1

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Asmita Rakhecha

While determining who gets the custody of a child in case of a divorce certain factors are taken into consideration:

a) The religion of the father determines which laws will apply while determining custody of child. Different laws apply for different religions and the law that shall be applicable is determined on the basis of the father’s religion.

b) The financial status of both parents play a crucial role in determining who shall be liable to bare all expenditures relating to the child. However, the economic status of the parent does not play a role in determining who gains custody rights. The character, nature and the relationship that child shares with either parent plays the most important role in determining which parent gets custody of a child.

c) As per Section 6 of the Hindu Minority and Guardianship Act, 1956, the mother of a child shall have natural guardianship of any child under the age of 5. However the father is said to be the first guardian of older male children and older unmarried female children. In spite of this, there is no hard and fast rule for the same. The custody of a child is determined based on the facts of each case.

d) Children over the age of 9 have a say in matters relating to custody. However in such cases, the child’s preference is given importance keeping in mind the reasonable understanding that child has in comprehending the consequences of the situation. Also it must be noted that, a child’s preference is accepted only if it is consistent with the welfare requirements of the child.

The Supreme Court held in Ms Githa Hariharan and another v. Reserve Bank of India and another (AIR 1999, 2 SCC 228) that gender equality must be kept in mind while determining custody of a child. It stated that, ‘gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category’

Hence these factors are given importance while determining the best interest of a child while resolving matters of custody.

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