Child Custody -What is unlawful custody & remedies for such Unlawful custody

This article analyses the various aspects of child custody under multiple circumstances, including the factors considered by the court. It discusses unlawful custody and remedies thereof. It also provides a brief introduction into the various types of custodies that are handed out by courts.

Thu Jun 02 2022 | Family Law | Comments (0)


When a couple seeks divorce for various reasons, if the child or children are minors, the legal right to keep and look after the child/ children is called Child Custody. Generally, it pertains to the right given to a child's mother or father but under  special circumstances, like death of the parent/s, it maybe even be granted to the grandparents or a third party relative to become the legal guardian of the child till the child attains majority. Custody can be of various kinds and some of them are listed under:

Types of Custody

  • Legal custody: This term involves the division of rights between the parents to make important life decisions for a minor child/children centered around the choice of a school, physician, medical treatments and religion. If the custody is joint then both parents share decision-making rights for the minor or if its sole rights over the minor, then the parent having the custody can decide over key decisions without consulting the other parent
  • Physical custody: It happens when a child lives with a parent and that parent decides over all the regular issues regarding the child for those periods the child is with them. The house of the parent having such physical custody of a child, will normally be the child's legal residence. The various times during which both parents lodge and take care of the child is a court-ordered custody with a parenting schedule or a parenting plan.
  • Bird's nest custody: Under this type of custody the parents alternate and visit a residence in which the child/children always reside. Therefore, the people who are continuously moving are the parents and not the minor. This practice is more practised in the West, as opposed to India where the Court generally grants physical custody.
  • Split custody: This type of custody happens when there is more than one child and involves an arrangement in which one parent has sole custody over some children, and the other parent has sole custody over the rest of the children.
  • Alternating/ Divided custody: This is an arrangement in which the child lives for an unmitigated period of time with one parent and in the alternate, the rest of the amount of time with the other parent.
  • Third-party custody: In exceptional circumstances, this custody involves an arrangement whereby the children are not with either biological parent, and are in the custody of a third person who could be a grandparent or a relative.

The crux of the above arrangements for a child are that these custodies are all ordered by the Court and the terms and arrangements for the child-care are decided by the appropriate Court having jurisdiction. In India, Child custody is governed by the Guardian and Wards Act, 1890 and Section 26 of HMA for most of the religions. The only exception being Christians who are governed by the Indian Divorce Act 1869 and the Guardians and Wards Act 1890.  For obtaining child custody, a petition for child custody or declaration for the appointment of a natural or legal guardian of a minor child has to be filed and with the filing of the petition by the parent/third party seeking child custody in a family court having jurisdiction, the process of granting the custody starts in a Court. However, Jurisdiction of Family Court for minor children is non-existent when these children are foreign citizens and not ordinarily residing within the jurisdiction of the Family Court, Ref: Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.

Since such petitions take a lot of time to be decided over,  either parent of the child may file an application for Interim or Temporary custody of the child, if there is a circumstance to believe that the welfare of the child is threatened pending the hearing of the Petition or else. Visitation Rights can also be filed by the Non-custodial parent. The provision which deals with such a situation is Section 12 of the Guardians and Wards Act, 1890, making provisions for temporary custody and protection of the person or property of the minor.

Every Court while deciding the custody Petition takes into consideration the following factors before handing over custody to anybody/parents applying for the custody.

  • First among the factors is the welfare of the child, which includes a safe environment for the upbringing of the child. The ethical background and mental condition of the applicant is an important consideration  while giving custody of the minor child. A balance has to be struck between the attachment and sentiments of the parties towards the minor children and the primary aspect of the welfare of the minors, which is of paramount importance, ref:V. Srinath Prasad vs. Nandamuri Jayakrishna, (2001) 4 SCC 71. Even Orders pertaining to custody of children passed by consent can be varied by the court, if the welfare of the child demands deviation from the original order. Ref: Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.
  • Economic background of the Guardian/Parent including whether a good education can be imparted to the child, has to be prima facie consideration as well.

On the other hand, if the child is at an age where they can understand the situation, their opinion is also considered by a Court while granting custody. This is governed by sub-section (3) of Section 17 of the Guardians and Wards Act, 1890, Ref: Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 .Under the Hindu Minority and Guardianship Act, 1956 the custody of a child aged under five years should ordinarily be with the mother. The Indian courts have time after time taken view that the mother is always the best and the most suitable custodian of the child. The general rule followed by the Courts is that the custody of a boy or a  spinster girl below the age of 18 years and above the age of 5 years shall be given to the father, as he is the natural guardian. But after his death, the custody can be given to the mother. The custody of illegitimate children shall always lie with the mother, without forcing her to disclose the name of the child’s biological father.

Unlawful Custody

Sometimes during the pendency of proceedings or even before filing of a proceeding or after the conclusion of the custody proceedings, either parent may resort to forcibly keeping the child away from the other parent which, basically  refers to unlawful custody. The proper definition includes, removal of the child from the environment, where it interferes with parental rights of the aggrieved parent. The remedies in such a situation are :

  • Petition under Section 9 of the Guardians and Wards Act, 1890: For a regular custody petition before divorce, a petition can be filed under Section 9 to a court where the ordinary residence of the minor is the place where the minor resides. Ref: Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 .
  • File a Writ Petition in a High Court or Supreme Court: For unlawful Custody the aggrieved parent can file a Writ petition of Habeas Corpus in the Court having appropriate jurisdiction of the area, where the minor child has been shifted. A writ of habeas corpus is proper if proved that the incarceration of a minor child by a parent is illegal and without any authority under the law, The landmark judgment to understand Unlawful Custody in such circumstances is Ref: Arathi  Bandi Vs. Bandi Jagadrakshak Rao & Others, AIR 2014 SC 918 where  the child was born to the Indian Origin parents in America and the custody of the child  was granted to the mother by an American court with visitation rights to the father. However, the mother in insolence of the order brought the child to India. The husband filed a Habeas Corpus Writ Petition in the High Court and the matter finally reached the Supreme Court of India, who held that the mother cannot gain advantage from the wrongful act. Therefore, it upheld the order passed by the High Court in a Habeas Corpus Writ Petition filed under Article 226 of the Constitution to return the child to America. It was also held by the Supreme Court of India, that the courts in other countries should warrant no wrong doer takes advantage of his wrong doing.

    In another landmark Judgment of N. Nirmala v Nelson Jeyakumar (JT 1999 (5) SC 223), the Supreme Court of India, held that depriving a mother of visiting rights was not justified.  This helps in cases where the father being the natural guardian tries to deprive the mother basic visitation rights. Therefore, it is of paramount importance for Indian Courts to examine the cases that come to it and return the child, if there has been an unlawful removal of child from the contact of the aggrieved parent.
  • India is not a signatory to the Hague Convention of 1980: Therefore, a child can seek asylum under the parens patriae jurisdiction of the Indian Courts. However, when such matters go to the Courts in India for adjudication,  they must consider the question, bearing the welfare of the child as  paramount importance and whether the child has been shifted inappropriately in contravention of any Court order etc. On the other hand, countries that are countersigners to the Convention, can have their Courts pass an order that the child be returned.

Although the above guidelines help in understanding child custody, each case in the Court is analysed on the basis of the peculiar circumstances and the final judgments are binding on both parents in the best interest of the child.

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