DR RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY, LUCKNOW

FAMILY LAW PROJECT

OPINION OF THE CHILD AND ITS ROLE IN DETERMINING THE BEST INTEREST OF THE CHILD IN
CUSTODY CASES

SUBMITTED BY SUBMITTED TO

VRINDA GAUR AND KOMAL AGGARWAL MRS SAMREEN HUSSAIN

ENROLMENT NO.-210101176 AND 210101074 FACULTY OF LAW

THIRD SEMESTER RMLNLU, LUCKNOW.

 ACKNOWLEDGEMENT

We are highly grateful to Professor Samreen Hussain for her guidance and constant supervision all
through the duration of the completion of this project as well as for providing the necessary
information and support for this project.

We would also like to express my heartfelt gratitude towards my family and friends for their kind
cooperation, and encouragement and for helping me out with their abilities.

Vrinda Gaur and Komal Aggarwal

Enrolment numbers- 210101176 and 210101074

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 INDEX

1. INTRODUCTION…………………………………………………………………3-4

2. VARIOUS LEGISLATIONS GOVERNING CHILD CUSTODY IN INDIA….4-6

3. CHILD’S PREFERENCE IN INFLUENCING A JUDGE’S DECISION AND

OTHER FACTORS TAKEN INTO CONSIDERATION BY THE COURT
WHILE GRANTING THE CUSTODY OF THE CHILD………………………6-8

4. CASES RELATED TO CHILD CUSTODY IN INDIA………………………….9

5. CONCLUSION……………………………………………………………………..10

6. REFERENCES……………………………………………………………………..11

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 INTRODUCTION

When a couple plans to take a divorce, apart from these two people, their child also has to go
through quite a traumatic experience as well. In all these nuances of life of both the parents,
the child is the one who is most affected by the decision of their parents. As it is generally
known that when a child attains the age of 18, he is no longer subject to a custody action.
However, when it comes to a child below the age of 18, it is a judge who has the discretion of
deciding upon the custody of the child as the opinion of parents for the same is generally
conflicting. The Supreme Court has taken cognisance of the fact that the tussle between the
husband and the wife with regards to the custody of the child often renders the child as the
loser. The child usually pays the heaviest price when they are directed by the court to go with
the parent it deems most fit for the child.
The Supreme Court in Himanshu chordia v Arushi jain1 stated that to ensure the best interest
of the child, he/she should be given love and affection by both the parents equally.
While granting custody to either of the parents, the main motive of the court is to ensure the
welfare of the child. This motive is further espoused by the latin phrase parens patriae,
which means that the court assumes the role of the parent of the child in custody matters. The
court takes into account various factors while determining the best interest of the child which
includes the history of the child’s life while covering his school life, relations with friends
and family etc.
Feelings about both parents are considered along with financial, emotional and psychological
influences.

While all these factors of considering a child's best interest look extremely ideal in theory,
when the parents of the child are in a tussle for the custody of the child, the true/best interest
of the child is often overlooked and takes a backseat.

Now a question arises: even though the court takes up parental responsibility, should it have
the final authority in deciding the custody cases while keeping in mind the child’s interest as
their first priority? Shouldn't the child have the ultimate say?

1
Himanshu Chordia v. Arushi Jain, V 2020 SLT 704.

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Through this article, the authors aim to highlight an emotional landmine- the opinion of child
in custody cases

VARIOUS LEGISLATIONS GOVERNING CHILD CUSTODY IN INDIA

As India is a secular state, it grants acknowledgement to the various personal laws being
followed by different religions in India. These diverse laws and legislations deal with the
issue of custody according to their own desirable customary and social settings.

Some of these laws and legislations are discussed in detail below :

CUSTODY UNDER HINDU LAW

1. Section 26 of the Hindu Marriage Act, 1955 2

These sections cover the maintenance, care and education of the child. This section
only becomes applicable when both the parents follow the hindu religion. Under this
section, the court becomes obliged to dispose of the pending decree within 60 days of
service of notice.

2. Section 38 of the Special Marriage Act, 1956 3

The provisions of this section are similar to that of section 26 of the Hindu Marriage
Act, 1955. However one significant difference between this section and section 26 of
the Hindu Marriage Act is that this section validates the custody of the child even if
both the parents belong to different religions.

3. Hindu Minority and Guardianship Act 1956 4

The provisions of the hindu minority and guardianship act 1956 does not take into
consideration the rights of any third party for custody related cases. In this act, the
provisions are only about the custodial rights between the biological parents provided
they are hindu.

2
Hindu Marriage Act, 1955, s 26.
3
Special Marriage Act, 1956, s 38.
4
Hindu Minority and Guardianship Act 1956.

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 4. CUSTODY UNDER MUSLIM LAW
As per the right of Hizanat under the Muslim Law, only the mother can claim the
custody of the child subject to the condition that there is no misconduct on her part.
The mother is entitled to the custody of the child until the child attains the age of 7
years in case of a boy and until the child attains puberty or the age of majority in case
of a girl. As per the Muslim Law, the father is considered to be the natural guardian of
the child and can claim custody of the child on two conditions. The first condition is
the completion of the age of the child upto which the mother or any other female is
entitled to the custody of the child. The second condition is the absence of the mother
or any other female who has the right of Hizanat.

5. Custody Under Christian Law

Christain law in general does not have any provision for the custody of the child but it
follows the laws under the section 41 Indian Divorce Act 5, which provides the powers
of the court to make orders related to custody of the child when parents are getting
divorced. Section 42 and 43 of the Indian Divorce act 6also plays the role in deciding
the custody of the child. Here the child’s custody is given to that person who is better
and more capable of maintaining the child and his needs and claim to both the parents
can even be denied if the court feels that both the parents are equally incapable of
maintaining the child.

6. CUSTODY UNDER PARSI LAW

There does not exist any personal law with regards to the custody of the child,
however it is regulated by the Guardians and Wards Act, 1890. 7 The main motive
behind this act is to promote and uphold the utmost welfare of the child and the court
might appoint any person it might deem fit for the same.
Any parent who desires custody and does not already have custody must apply for
custody from the Guardian Court, regardless of the traditions or personal law
regulations the parents' community or sect follows on custody. In other words, the
custody of a child is never automatically transferred to one parent over another.

5
Indian Divorce Act 1869, s 41.
6
Indian Divorce Act 1869, s 42, 43.
7
Guardians and Wards Act 1890.

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CHILD’S PREFERENCE IN INFLUENCING A JUDGE’S DECISION AND OTHER
FACTORS TAKEN INTO CONSIDERATION BY THE COURT WHILE GRANTING
THE CUSTODY OF THE CHILD.

1. Weightage of child’s preference while deciding custody cases

It is evident that the Court will give consideration to a child's request to avoid contact with or
interaction with a parent where the following conditions are met:
● The child's opinions and the justification for expressing those opinions are both
obvious;
● The child's opinions are essentially their own;

● The ideas of the child have not been significantly influenced by the other parent;

● The child is old enough to be given credit for such opinions.

● When forcing a child to spend time with the other parent against their will is likely to
have a detrimental effect on the youngster.

The Court may take the minor's preference into consideration if they are old enough to
establish an informed preference, according to Subsection (3) of Section 17 of the Guardians
and Wards Act of 1890 8. The weight that should be given to the minor's preference, however,
depends on a number of other circumstances. Although the minor's intelligent preference may
be one of several variables, it will never be the deciding factor.

The following is taken directly from Article 12 of the United Nations Convention on the
Rights of the Child States9 “Parties shall ensure that children who are capable of developing
their own opinions have the freedom to express their opinions in any situation that affects
them, with consideration for the child's age and maturity.

8
Guardians and Wards Act 1890, s 17(3).
9
United Nations Convention on the Rights of the Child States 1989, art 12.

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To achieve this, the child must be given the chance to participate in any judicial or
administrative processes that concern them, either directly or through a representative or
other suitable entity, in a way that complies with the National Law's procedural standards."

If the child is old enough to make his own decisions, the court must take it into account while
considering who should be the minor's guardian. According to Indian law, it varies from case
to case what age a child is able to make a mature decision. The child's age is not a big factor
when determining whether or not they are competent to make capable decisions. In order to
determine whether a kid is capable of making an educated decision, the court must take into
account the child's mental development. In the case of Baldeo v. Dhanna Mal10, the court
considered a fourteen-year-old girl's viewpoint when making a guardianship decision.

The child's preference will be taken into account, but the court will not be bound by it. [ Nil
Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 41311). If the court decides it is in the best
interests of the kid, custody may be granted despite the youngster's wishes.

In Nil Ratan Kundu & Anr v. Abhijit Kundu 12, the court concluded that, even though the court
has the last say, the preference of the minor kid should be taken into account if he is old
enough to make an informed decision. The child's preferences play a role in making decisions
regarding their care.

There also exists a welfare concept while determining the custody of the child. The welfare
concept aims to accomplish two things. Firstly, the child must develop and grow in the best
environment possible. The best interest of the kid has been positioned at the forefront of
family/custody conflicts and takes precedence over other concerns in order to ensure the
child's optimal growth and development. The foundation for this right of the child is also
human dignity.

The best growth for children serves the public interest, which is the second defence of the
welfare principle. In the case of Vivek Singh v. Romani Singh13, it was determined that
child-centric human rights law has developed and is based on the idea that children's healthy
growth, who are the country's future, is in the best interests of all involved.

10
Baldeo v. Dhanna Mal, AIR 1927 Nag, at 314.
11
Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.
12
ibid.
13
Vivek Singh v. Romani Singh, (2017) 3 SCC 231.

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2. Other Factors Taken into Consideration while Granting Custody of the Child

Apart from the opinion of the child, the court takes into consideration various other factors
while granting the custody of the child to either of the parents. Some of these factors are as
follows:

1. Evidence of domestic violence or abuse by either of the parents.

2. Which of the parent’s provide for the majority of the child care and upbringing. The
court may take into consideration the weightage of responsibility taken by either
parents with regards to the upbringing of the child.
3. The physical and mental well being of either parents
4. The quality of relationship shared between the child and either of the parents. The
court is likely to grant the the custody to that parent who shares more warm relations
with the child
5. The court may take into consideration the readiness of the parent to facilitate his/her
kid’s relationship with the other parent. The court would like to ensure that because of
personal issues between the parents, the kid’s relationship with either of the parent is
hampered.
6. The court will take into consideration the accommodation facilities available at either
of the parents’ home and whether they can provide for a suitable environment for the
upbringing of the child

These are some of the other factors apart from the opinion of the child that the court
might take into consideration while granting the custody of the child.

CASES RELATED TO CHILD CUSTODY CASES

1. The "welfare of the kid" is of utmost importance while making decisions on child
custody or other matters (Somnath Das v. Sheoli Hati, (2019) 7 SCC 49014). The
wellbeing of the child is the court's top priority, not the welfare of the mother or the

14
Somnath Das v. Sheoli Hati, (2019) 7 SCC 490.

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 father. The primary concern is the minor's welfare, and only the minor's wellbeing
(Shripad Vasanji Vad v. Saraswatibai Shripad Vad, 1940 SCC OnLine Bom 7715).
2. The High Court must: Consider the wishes of the involved child; assess the
psychological impact, if any, on the change in custody; and seek the advice of a child
psychiatrist or a child welfare worker before deciding whether custody should be
given to the mother or the father, or partially to one and partially to the other.
According to Mamta v. Ashok Jagannath Bharuka, (2005) 12 SCC 45216, all of this
must be done in addition to determining the relative material welfare that the kid or
children may experience with either father.
3. It is vital and desirable for the court to interview the youngster to find out who he
wishes to stay with. As stated in Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC
41317, such an examination aids the court in carrying out its onerous duties, in
exercising its discretionary jurisdiction, and in making a decision regarding the
delicate matter of custody of a young child. This is in addition to the statutory
provision found in sub-section (3) of Section 17 of the Guardians and Wards Act,
189018.
4. The court must take the minor's preferences into consideration if they are old enough
to make rational decisions, but the court should ultimately decide what is best for the
minor's welfare.

CONCLUSION
The best interests of the kid are now consistently considered by all of India's child
custody laws, which are still growing. Additionally, the Law Commission's proposals
and fresh petitions are thriving to ensure that the opinion of the child is given much
consideration and acknowledgement apart from equal custody rights for mothers and
fathers. These rights are becoming more well-known in the modern period, and courts
now frequently treat mothers and fathers on the same footing.
Usually, if the child is of an older age, the degree of maturity is more and his opinion
is likely to have more weightage than a child who’s degree of majority is
comparatively less.

15
Shripad Vasanji Vad v. Saraswatibai Shripad Vad, 1940 SCC OnLine Bom 77.
16
Mamta v. Ashok Jagannath Bharuka, (2005) 12 SCC 452.
17
Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.
18
Guardians and Wards Act 1890, s 17(3).

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However, the issue of manipulation on the part of parents, often leading to the child
battling “parental alienation syndrome” has been one of the factors which is
overlooked by the current legal regime.
Though the law has progressed through various judicial pronouncements to ensure
that a substantial amount of weightage is given to the opinion of a child, the law lacks
behind in giving its enough acknowledgement to his opinion. Though the courts take
into consideration his/her opinion, it often fails to act on it.
Thus the need of the hour is to ensure that proper credence is given by the court to the
opinion of the child while granting custody to his/her parents while bringing out a
more reformed evolution of the custody laws.

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REFERENCES

1. Age-child-decide-parent-live-pennsylvania
2. https://www.hg.org/legal-articles/role-of-child-s-preference-in-a-child-custody-case-4
2956
3. https://terryandrobertslaw.com/blog/six-factors-judges-consider-in-child-custody-case
s/
4. https://www.aguerolawfirm.com/blog/2021/12/how-alaskan-courts-consider-child-pre
ference-in-custody-cases/
5. https://www.firstpost.com/opinion/why-courts-should-give-greater-say-to-kids-while-
deciding-their-guardianship-10902401.html
6. https://vakilsearch.com/blog/child-custody-in-india/
7. https://www.thejusticeproject.org/are-a-childs-opinions-considered-with-child-custod
y-arrangements/
8. https://www.bikellaw.com/blog/68/how-does-the-court-consider-your-childs-opinion-i
n-a-custody-case/
9. https://educaloi.qc.ca/en/capsules/a-childs-preference-about-custody/
10. https://www.hg.org/legal-articles/will-my-child-s-opinion-be-considered-in-a-custody
-case-38824
11. https://www.myadvo.in/blog/child-custody-laws-in-india/
12. https://www.livelaw.in/top-stories/supreme-court-best-interest-child-custody-wish-des
ire-rohith-thammana-gowda-vs-state-of-karnataka-2022-livelaw-sc-643-205213
13. https://www.scconline.com/blog/post/2019/11/25/custody-of-children/
14. https://theprint.in/india/best-interests-welfare-of-child-of-paramount-importance-in-de
ciding-custody-case-sc/1039324/
15. https://educaloi.qc.ca/en/capsules/a-childs-preference-about-custody/
16. https://www.jstor.org/stable/25739168
17. https://www.jstor.org/stable/3700221#metadata_info_tab_contents
18. https://www.researchgate.net/publication/227685659_Influence_of_Child_and_Famil
y_Factors_on_Judicial_Decisions_in_Contested_Custody_Cases
19. https://pnwfamilylaw.com/how-much-influence-does-a-childs-wishes-have-during-cu
stody-decisions/

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