Father’s Rights | Child Custody and Visitation

Parenthood is a right of every child and is an essence of child’s growth. Over the last decade, there has been a change in custody and access to the child, from being parent centric to child centric, “the best interest of child” is now of paramount importance, as “children are like wet cement whatever falls on them makes an impression.”- Haim Ginott, child psychologist.

The laws governing custody and guardianship rights in India are mainly the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. Matrimonial legislations, such as the Hindu Marriage Act, 1955 and the Parsi Marriage Act, 1936 , allow for courts to pass interim orders on the custody of the children. However, India being a secular country has to respect religious beliefs as well. Hence, personal laws have different notion of physical child custody.

Let us have a brief of what our law specifies regarding custody and visitation rights:

1. Who is the natural guardian of a child?

A father is the natural guardian of his minor legitimate children- (includes both sons and daughters). A father cannot be deprived of the natural guardianship of his minor children there are specific reasons/circumstances justifying the same.

2. Are the rights of father same in the case of an adopted or an illegitimate child?

The position of adopted children is at par with that of a natural born child. The position of a illegitimate child is different. the mother is the guardian of the minor illegitimate children even if the father is alive. Mother’s right to guardianship stays even if she has converted her religion.

3. When can the custody of a child be taken away from the father?

Father is the natural guardian as per law, but this custody of child can be taken away from the father in the following cases-

i.) when the father is indifferent towards the child.

ii.) the father is physically or mentally incapable of acting as a guardian.

iii.) when mutually decided between the parties that the mother will have the custody.

iv.) if is unfit for being a guardian due to any other reason.

4. Is the law of father being a natural guardian strictly followed?

Child custody is the most important aspect in case of conflicting parents, with each parent trying at their end to gain the custody of their child. Though as per the law, father is considered to be a natural guardian, mothers are naturally favored for legal custody. Yet court’s decision is based on the best interests and welfare of the child. Guardianship of child is offered to a parent who is seen most fit for the upbringing of the child, providing better financial security and adequate parenting skills.

Geeta Hariharan v. Reserve Bank of India, is a path breaking judgement in realm of Indian Family Law, declaring mother to be a natural guardian of a child during the lifetime of the father. It was held that “gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category”

5. What are the visitation rights of the non- custodial parent?

Visitation right of the non-custodial parent could be weekly, fortnightly, daily or monthly. It could be just a day access or overnight access with gradual increase including weekend or vacations, access on special days, etc. If the custody of the child is with the mother, father has equal rights to celebrate festivals with his child, and if not given, he can move to the court for the same.

Though there are various laws laying down provisions for custody and guardianship of a child, none of the courts strictly follow the provisions. Within the realm of judicial intervention, the higher courts should make sincere efforts to chalk out strict guidelines for the custody of the child. In the absence of these, child custody matters usually rest on the discretion of the judges, who as can be seen from the past, are not always free from one or other stereotypes.

About the Author

This article has been authored by Rahul Parashar, Co-Founder & Chief Legal Advisor at LegalNow & Ayushi Sharma, Founding Intern at LegalNow.