-by Anchal Bhatheja

The Best Interest of the Child principle (BIOC)  has been gaining importance in the letter and the spirit of the law. Right from International conventions, domestic legislation and judicial decisions, the BIOC principle has been recognised and subjected to diverse interpretations across the spectrum.

I argue that despite this principle, there are certain lacunae in the substantive and procedural law concerning custody and guardianship of Hindu minors that jeopardise this very idea.

Lack of the Child’s Participation

Custody and guardianship battles are one of the most difficult areas of family law. The posited law concerning this subject is limited and it vests the power of adjudicating these cases, which might have extremely diverse facts, with the courts wherein they are expected to deal with these cases with sensitivity and sensibility due to subjectivity of these cases and the kind of impact such decisions can have on the lives of the children under question.

Article 12 of the Convention on the Rights of the Child provides that the child has the right to express his/her views regarding everything that affects it. But to what extent is this participation effective is a normative question. Moreover, the Principles of Natural Justice also promote this idea of listening to the other side. But in the custody and guardianship battles, is the child even a party to the dispute? If no, then does the subject of the dispute, which is the child, should be allowed to express its wishes? Another question is that if such participation is allowed, is the participation effective?

Section 17 of the Guardians and Wards Act, 1890 provides for the parameters that the court ought to consider while deciding the guardianship of a child. It has been reproduced hereunder:

“17. Matters to be considered by the Court in appointing guardian.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a de­ceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If minor is old enough to form an intelligent preference, the Court may consider that preference.”

This provision is an amalgamation of both, paternalism and liberalism wherein the court is supposed to look at factors like age, sex, religion etc. and make the best decision so as to benefit the child, as per what it feels is right.

The court might sometimes look into what the child wants, as that is what section 17, also calls for. However, the wishes of the child cannot be ascertained sometimes, because the child is too young to express their wishes in the first place. This can also happen when one parent tries to influence the child against the other parent in order to cause a Parental Alienation Syndrome wherein the parent who has the custody of the child and gets to spend more time with them, tries to poison their brain against the other parent thereby, making the child more inclined towards staying with the parent who already has the custody.

This all primarily happens because the children don’t have the requisite understanding and knowledge of legal processes and the courtroom procedures are not very children friendly. Moreover, the parents treat custody and guardianship as a mere legal battle and the rights and welfare of the child take a backseat in the whole process. The children do not have anyone to represent them in the courtroom as parents in custody battles just represent themselves and not the child or their interest.

Conventional Morality in the Law

Along with this is the problem of deep-seated Conventional Morality that continues to plague our laws. For instance, as per the Hindu minority and Guardianship Act endorses the Tender Age Doctrine that says that the child till the age of 5 is better off with the mother as she is the best person to look after a young child as she has “genuine love and affection” for the child. This was also held in the case of Bimla and others v. Anita and others. Although it is a rebuttable claim, it is unfair that fathers are always legally mandated to rebut it. If the judge deciding the case is a pure formalist who just believes in the back letter of the law, might give away the custody to mother in every other case, without going into the fact situation and determining the Best Interest of the Child. Thus, this provision just re-enforces the gender stereotypes as per which women are supposed to look after children and fathers are not good caretakers.

Another such manifestation of a social bias can be seen in Section 6A of Hindu Minority and Guardianship Act. The natural guardianship of the child rests with the father. It is only after the death of the father or when he has been declared unfit to be the natural guardian, the mother becomes the natural guardian. This provision again takes away agency from women and re-enforces gender roles and is effectively violative of the substantive equality that has been envisaged under Article 14 of the Constitution of India.

Unaddressed Questions in the Law

There is no statutory provision in India that deals with visitation rights. The courts have set all the standards, rules and regulations for the same. But in order to reduce the discretion and uncertainty that exists in this area due to catena of case laws, it is important to have a statute in place that deals with the same.

Moreover, the concept of joint guardianship has not developed in India much. In the case of KM Vinaya v. B Srinivas, the court gave the joint guardianship to both the father and the mother. But even this concept has not been posited in any law. The 257th report of the Law Commission of India titled “Reforms in Guardianship and Custody Laws in India” also recommended the definition of joint custody to be introduced in the Guardianship and Wards Act. The concept of joint guardianship wherein the child would be under the custody of both parents for a given period of time during the year can help in conferring on the child their right to receive the affection of both the father and mother (Vikas Ahuja v. State NCT of Delhi) and needs to receive legislative recognition.

The Way Ahead

To make sure that the children get requisite representation in the courtroom processes, there is a need to have a guardian ad litum which means the person who assumes the guardianship of the minor for the purposes of litigation. Such a person can represent the best interest of the child before the court. This concept has been rarely been materialised in India. However, it has fared well in the courts of the USA and thus, can go a long way in making the Indian legal system more child-friendly.

Then, there is a need to re-visit the archaic laws in order to bring them on lines with changing times and social contexts. This is indispensable to uproot fact-free gender stereotypes and serve the child’s best interest in the truest sense.

Lastly, there is a need to posit laws after consulting all the stakeholders to remove uncertainty and unpredictability in the area of custody and guardianship so that there is no room for arbitrariness.

Custody and guardianship are very important concerns for the child as they impact the emotional, psychological and mental well being of the child. Thus, all these amends in the procedural and substantive law and their implementation need to be taken forward in order to materialise the most fundamental principle of family law pertaining to custody and guardianship i.e., the best interest of the child.

The views are personal.


Anchal Bhatheja is a second year student at National Law School of India University, Bangalore.

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