Legal Article

Custody of child below five years

Shivendra Pratap Singh


High Court Lucknow


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Published on: 3 Mar, 2022

Taking custody of a child below the age of five years is a difficult question for the father. However, father and mother both are natural guardians under the Hindu Minority and Guardianship Act, 1956. But the mother gets priority over the father for the custody of a child below five years. Section 6(a) of the Hindu Minority and Guardianship Act specifically mentions that 

The custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

Section 6(a) Hindu Minority and Guardianship Act, 1956

But the provision of section 6(a) denotes a flexible rule because it says that the custody shall ordinarily be with the mother. It does not make it a mandatory provision that in each and every case the mother shall get custody of the child if he is below five years. Therefore, the court, while deciding the issue of custody must consider the welfare of the child. Welfare of a child is the paramount consideration in the matters relating to custody of a child between two natural guardians.

Welfare of child 

Guardianship of child is a difficult and complex question. The statute, however, indicates a preference for the mother, if the child is below the age of five years. Devoid of rigid rule of guardianship in statute, confers an obligation on the court- to deal with this sensitive matter in the touchstone of the welfare of the child. in Nil Ratan Kundu and another vs. Abhijit Kundu, (2008) 9 SCC 413 the Supreme Court has held that 

In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child’s ordinary comfort, contentment, health, education, intellectual development and favourable surroundings.

Nil Ratan Kundu Case, 2008

Granting custody of a child from one guardian to another is a humanitarian issue. Therefore, it should be decided with a human touch instead of strict principles of law. If the court satisfies that the welfare of the child be with his father, then father shall get his guardianship. Child’s tender age would not be an important matter in that case.

The Supreme Court has reiterated this view in Tejaswini Gaud and others vs. Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42. It has opined that “The welfare of the child has to be determined owing to the facts and circumstances of each case and the Court cannot take a pedantic approach.”

Thus the father can get custody of the child below five years if he satisfies the court about his welfare. The proviso of Section 6(a) will not pose a hurdle in taking guardianship of his child. Welfare includes:

  • Natural love and affection
  • Physical, moral and social comfort
  • Health, education and intellectual development

If the child has attained enough maturity to form an intelligent preference or judgment the court must consider his preference as well.

Who decides the issue of welfare

Ultimately the court has the right to decide the welfare or well being of the child. The court exercises its parens patriae jurisdiction while selecting a proper guardianship. Therefore, it is the responsibility of the court to decide this matter with utmost care or caution. It should also consider all the surrounding circumstances that lead to securing the good future of the minor.

The court, while deciding the dispute of guardianship, is not bound by statutes nor by strict rules of evidence or procedure nor by precedents. It acts like a parens patriae i.e. as the parent of the child. The court becomes the informal caretaker of the child who is, however, the subject matter of the dispute but not being in position to decide his preference.

Grounds when father can get custody

Matrimonial infidelity

When a wife has committed matrimonial infidelity she cannot retain custody of her child. Her unchestity and sexual attachment with paramour will not give a comfort ambience to her child. The child may lose the emotional attachment with her mother or the mother may ramarry with her paramour. In these conditions the child will suffer the most. Therefore, the welfare of a child lies in his father more than his mother.

Cruelty & Carelessness

When the mother has committed cruelty towards her child then she cannot claim custody. An infant depends upon mother for all his necessities. Therefore, a mother should be careful and attentive. A series of careless attitudes of a mother can constitute a ground to take away child’s custody from her.

Financial ground

When a mother has no income or means to keep proper care of her child, it may constitute a ground for conferring custody to the father. But this is a weak ground because destitution cannot replace the eternal love of mother. Mother can claim maintenance from the baby’s father under section 125 of the code of criminal procedure.