Who Wins the Battle for Custody? An Analysis of the Nature of Modern Judicial Understandings of Women’s Rights in Cases of Custody of Minor Children in Matrimonial Disputes Under the Hindu Laws in India

Abstract

In marriages, tussles are inevitable. But the Hindu code of laws which were based on Manu Smriti, on marriages, succession and right to guardianships of minors had mostly preferred fathers over the mothers to be the primary custodian of the children, especially male children in broken marriages. This is because of the age-old Hindu mindset which allowed only sons to carry on the family names, do the last rites and be the sole successors of parental properties. Female children were (and still are, even now) mostly left with the mothers on the belief that mothers may best protect and guide young girls during the time of puberty, nurture them as future home makers, good wives and good mothers. Mothers were deprived of their rights to keep the female children the moment the husbands, who may have abandoned them, the society and also the courts of law, could prove that they have lost their chastity. The strange social customs allowed divorced fathers with children to take care of, to remarry for their sexual gratification, as well as for providing life partners for themselves and good mothers to their children. But divorced mothers, who fought for rights of motherhood over their children, were debarred from even accessing their children when they remarried.This article deals with three basic questions:

1. Are women still considered as ‘weaker sex’ in the eyes of law when it comes to custody of a child who has crossed the age of five?

2. Could mothers replace the fathers in government documentations for the welfare of the child?

3. Could Vanitha’s judgment(2010) bring a change in the mind-set of judges, lawyers as well as common law abiding citizens regarding the prior need of the care of the biological mother for the minor children over the rights of father ?

This paper will analyze these questions in the light of three important judgments by High Courts and noteworthy women-centric precedents by the Supreme Court.

Keywords: custody of minor children, child rights, Hindu Law, the Hindu Minority and guardianship Act