Can the mother of a child be made the sole legal guardian while his father is alive? The answer is yes, but this happens only under certain circumstances. Recently, in a similar case, the Madras High Court declared the mother of a minor son as his sole legal guardian and also handed him permanent custody. The court said that there is no evidence on record to prove that the mother is unfit or unsuitable to take care of the child. Therefore, she was also allowed to take the child to Canada for better education and upbringing. Justice A. D. Maria Clete said in her order that in the absence of a final arrangement on visitation rights between the parents living separately, important decisions related to the welfare of the child cannot be stopped. This decision has once again raised the question that under what circumstances in India a mother can become the sole legal guardian of a child even when the father is present. Let us understand what this matter is, what Indian law says about it, how custody is decided in cases of parents living in different countries and what is the difference between custody and guardianship.
What is the whole matter?
This case is related to a couple who got married in September 2016 and their son was born in January 2019. After discord in the marriage, both of them started living separately and the mother started living with the son at her parents’ house. The court was told that the father was not continuously contributing towards the child’s upbringing, expenses and education. When the mother tried to take the child to Canada for better care and education, the father did not cooperate in providing the necessary consent and documents for visa and school admission. After this, the mother approached the court and presented various documents like marriage certificate, child’s school documents, identity card, father’s old divorce petition and her own maintenance case. A legal notice was sent to the father. The father came and himself appeared in the court and said that he had no objection to the mother being made the sole guardian, he just wanted the right of visitation i.e. the right to meet the child. Later he also filed a consent affidavit in this regard.
In this case, since there was no original dispute regarding guardianship left, the Honorable Court said that making the mother the sole legal guardian and giving permanent custody would be in the best interest of the child. It was also made clear that the father’s demand for visitation should be decided separately, through mutual consent or through a proper application, so that the decision related to the interest of the child does not get stuck. The court also allowed the mother to take the child out of India, live and study there, while leaving the father open to seek visitation rights in a competent court. This decision has raised many questions regarding custody.
Question- If parents live in different countries, who decides the custody of the child?
answer- When one parent wishes to travel abroad with the child, or the parents live in different countries, the custody issue can be complex, as India is not a signatory to the Hague Convention of 1980 on International Abduction of Children. This means that the custody order of a foreign court is not automatically enforceable in India and similarly, the order of an Indian court is also not directly enforceable in a foreign country unless the court there recognizes it.
In such cases, Indian courts mainly look at two things before granting permission for foreign travel or transfer. Firstly, is there really any dispute between the two parents regarding guardianship and custody and secondly, what is the best decision in terms of the best interest of the child, i.e. education, security and stability. If either father or mother objects to taking the child to another country, he or she can file a petition in the concerned court under the Guardians and Wards Act, 1890, or can also file a Habeas Corpus petition in the High Court for immediate relief.
Question- Can a mother become the legal guardian of a single child?
answer- Yes, in some circumstances the mother alone can become the legal guardian of the child, as happened in this latest case of Madras High Court.
According to Section 6 of the Hindu Minority and Guardianship Act, 1956, the natural guardian of a Hindu minor is the father first and the mother becomes the guardian “subsequently”. Although the custody of a child under five years of age usually remains with the mother, in the 1999 case Geeta Hariharan vs. Reserve Bank of India, the Supreme Court interpreted this provision to mean not only the death of the father, but also his absence, complete indifference, incompetence or inability to care for the child. That means, even if the father is alive and unable to raise the child, the mother gets his rights.
The second important law is the Guardians and Wards Act, 1890, which applies to people of all religions. Under its section 7, the biggest objective of the court is ‘the welfare of the child’ and not just the legal rights of the parents. The Madras High Court also reiterated in its order that in matters related to guardianship and custody, the interest of the child is paramount and the rights of the parents may be relevant, but they do not give value to the stability, safety and educational future of the child.
Question- What is the rule in case of unmarried mother?
answer- The situation before the courts to declare the mother as the soul guardian usually arises when the father himself gives consent, as happened in this case, or the father is proved to be missing or incompetent. However, in the case of ABC vs. State of Delhi (2015), the Supreme Court had also said that an unmarried mother can file a petition to become the sole legal guardian of her child even without disclosing the name of the father, because the court is primarily concerned with the welfare of the child and not with the consent of the father. Although it is not necessary that the consent of the father is mandatory for sole guardianship, the real criterion always remains the interest of the child. In the Madras High Court case, the father’s consent and the absence of any pre-existing genuine dispute over guardianship certainly became a factor in making the decision easier for the court.
Question- What is the difference between child custody and soul guardianship?
answer- In common parlance, custody and guardianship are often considered the same, whereas legally there is a clear difference between the two.
- Child Custody- Custody means who will take daily care of the child. With whom does he live, who is responsible for his daily routine, studies and general upbringing. Custody can be of many types – physical custody i.e. with whom the child will live, joint custody i.e. both parents should fulfill joint responsibilities and the third is visitation rights. In this, the parent who does not have custody can meet the child.
- Guardianship- It is not limited only to the care of the child, but also gives legal rights over major decisions like education, health, property, documents like passport and visa. A person can be a child’s legal guardian without having physical custody of them, and vice versa.
In this case of Madras High Court, the difference is clearly visible that the mother was not only given permanent custody but was also given sole guardianship, due to which she can take major decisions like child’s education, visa, travel alone, whereas only the path of visitation was kept open for the father.
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