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Custody of Children under Christian Law

G. ARAVINTHAN

Last updated: 27 May 2009

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Christian law per se does not have any provision for custody but

the issues are well solved by the Indian Divorce Act which is

applicable to all of the religions of the country. The Indian

Divorce Act, 1869 contains provisions relating to custody of

children. Section 41 of the said Act provides with the powers to

make orders as to custody of children in suit for separation. -In

any suit for obtaining a judicial separation the Court may from

time to time, before making its decree, make such interim

orders, and may make such provision in the decree, as it deems

proper with respect to the custody, maintenance and education

of the minor children, the marriage of whose parents is the

subject of such suit, and may, if it think fit, direct proceedings to

be taken for placing such children under the protection of the

said Court.

In the case of Rosy Jacob v. Jacob A. Chakramakkal the Court held that:

All orders relating to the custody of the minor wards from their very nature must be considered to
be temporary orders made in the existing circumstances. With the changed conditions and
circumstances, including the passage of time, the Court is entitled to vary such orders if such
variation is considered to be in the interest of the welfare of the wards. It is unnecessary to refer

to some of the decided cases relating to estoppel based on consent decrees, cited at the bar.

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Orders relating to custody of wards even when based on consent are liable to be varied by the
Court, if the welfare of the wards demands variation. ‘The Court, after a decree of judicial
separation, may upon application (by petition) for this purpose make, from time to time, all such

orders and provision, with respect to the custody, maintenance and education of the minor
children, the marriage of whose parents is the subject of the decree, or for placing such children
under the protection of the said Court, as might have been made by such decree or by interim
orders in case the proceedings for obtaining such decree were still pending’.

In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in, or
removed to, a High Court, the Court may from time to time, before making its decree absolute or

its decree (as the case may be), make such interim orders, and may make such provision in the
decree absolute or decree and in any such suit instituted in a District Court, the Court may from
time to time, before its decree is confirmed, make such interim orders, and may make such
provision on such confirmation, as the High Court or District Court (as the case may be) deems
proper with respect to the custody, maintenance and education of the minor children, the
marriage of whose parents is the subject of the suit, and may, if it thinks fit, direct proceedings to

be taken for placing such children under the protection of the Court.

In Halsbury's Laws of England, the Law is succinctly in the following terms:-

"428. Infant's welfare paramount. In any proceedings before any Court, concerning the custody
or upbringing of an infant or the administration of any property belonging to or held on trust for an
infant or the application of the income thereof, the Court must regard the welfare of the infant as

the first and paramount consideration, and must not take into consideration, whether from any
other point of view, the claim of the father, or any right at common law possessed by the father in
respect of such custody, upbringing administration or application is superior to that of the mother,
or the claim of the mother is superior to that of the father. This provision applies whether both
parents are living or either or both is or are dead.

Even where the infant is a foreign national, the Court, while giving weight to the views of the
foreign Court, is bound to treat the welfare of the infant as being of the first and paramount
consideration whatever orders may have been made by the Courts of any other country."

In the case of Rosy Jacob v. Jacob A. Chakrammakkal, this Court has observed:

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"Where, however, family dissolution due to some unavoidable circumstances becomes

necessary the Court has to come to a judicial decision on the question of the welfare of the
children on a full consideration of all the relevant circumstances. Merely because the father loves
his children and is not shown to be otherwise undesirable cannot necessarily lead to the

conclusion that the welfare of the children would be better promoted by granting their custody to
him as against the wife who may also be equally affectionate towards her children and otherwise
equally free from blemish, and who in addition because of her profession and financial resources,
may be in a position to guarantee better health, education and maintenance for them. The
children are not mere chattels; nor are they mere playthings for their parents. Absolute right of
parents over the destinies and the lives of their children has, in the modern changed social
conditions, yielded to the considerations of their welfare as human beings so that they may grow

up in a normal balanced manner to be useful members of the society and the guardian Court in
case of a dispute between the mother and the father, is expected to strike a just and proper
balance between the requirements of welfare of the minor children and the rights of their
respective parents, over them.

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