Estranged parents and child custody

The custody of a child following a divorce cannot be taken for granted as the order can be reviewed under “changed circumstances”.

That the mother alone is the custodian of the child is an old notion. Both the mother and the father are considered natural guardians of their minor child.

While settling a controversy over the interpretation of Section 6(a) of the amended Hindu Minority and Guardianship Act over a decade ago, a bench headed by then chief justice AS Anand had observed: “In the case of a boy and an unmarried girl, guardianship rests with the father. After him, the mother can be provided custody of a minor who has not completed five years. It is a truth that both the mother and the father are duty bound to take care of their child and both parents ought to be treated as guardians,” he said.

However, about six years ago, the Supreme Court (SC) handed over a minor girl’s custody to her mother even though she had remarried. When the father sought custody of the child, the apex court came up with a rider. It said if circumstances changed in the future, the father who had not remarried could file a fresh application to get his daughter back.

The father moved a family court in Bangalore after his former wife bore children from her second marriage. Claiming that circumstances had changed, he sought custody of his 14-year-old daughter. The court admitted his plea. The mother moved the SC saying her first husband could not seek custody of their daughter claiming changed circumstances. The SC admitted her plea.

Whether a parent, who has not got custody of his/her child, can stake claim to his/her child is an issue of paramount importance. The Karnataka high court says a parent can reclaim custody. But it is worth mentioning that a court may be the right forum for grievance redressal, but the pleas of a child affected by the rigmarole of legal proceedings should be given equal weightage while deciding who among the two estranged parents would be a better guardian.