Can a Father Lose Custody of a Child Under Five?

Roxann Sharma and Arun Sharma were locked in a bitter fight over their infant son, Thalbir. The marriage was turbulent, and the child had been conceived through IVF. The family had lived in the United States and had only recently shifted to Goa. The father started the custody case himself, in Margao, under Section 6 of the Hindu Minority and Guardianship Act, 1956.

The mother held a Master of Arts degree from Howard University and was a tenured college professor in Los Angeles. The father had passed only high school. He had been through a drug rehabilitation clinic, was a member of Narcotics Anonymous, and could not show regular employment or independent income. He claimed he had earned ₹40,000 to ₹50,000 a month over the past three years, yet he was not an income tax assessee.

The mother learned in August 2013, after frantic searches, that the father had taken Thalbir to Mumbai. The father had never told the Goa civil judge. On 31 January 2014 the Second Additional Civil Judge, Senior Division, Margao, gave the mother interim custody and the father visitation. He found the allegation that she had bipolar disorder was not persuasively proved, and that it would not disqualify her anyway.

The High Court of Bombay at Goa then reversed the arrangement on 2 August 2014. A Single Judge kept custody with the father and gave the mother "frequent" visitation, at least three days a week. The Supreme Court noted that the father never appealed that visitation direction. He also said the mother had not established her suitability for interim custody of the infant.

The mother then asked for visitation. The trial court ordered Thalbir to be brought to court every Saturday and handed to her until Monday. A second Single Judge struck that down. His reasons were:

• "Frequent" cannot mean continuous.
• The mother had no permanent residence in India and no fixed Goa address.
• She allegedly had bipolar disorder.
• The Hindu minority and guardianship laws might not even apply in Goa.

The mother then came to the Supreme Court.

Section 6 of the Hindu Minority and Guardianship Act, 1956 names the father, and after him the mother, as natural guardian. Its proviso then says custody of a minor who has not completed five years shall ordinarily be with the mother. The mother here is a Christian, but neither side objected to the Act applying, so the Court proceeded on that basis.

The Supreme Court held that the Single Judge who wrote the 2 August 2014 order had lost sight of the word "ordinarily". That word creates a rebuttable presumption in the mother's favour. The Single Judge had instead said the mother had not established her suitability. That put the burden on the wrong parent.

The second dispute was about courts overriding each other. Section 14 of the Guardians and Wards Act, 1890 reflects the need for one court to handle a child's guardianship or custody dispute. The second Single Judge rewrote the earlier Bench's visitation order and added the word "preferably", which was not in it. The Supreme Court said co-ordinate Benches must respect prior orders.

Justice Vikramajit Sen wrote that the Court's reflections were limited to interim custody of an infant, since the trial was still pending. The core holding:

The Court added that it is for the father to plead and prove the mother's unsuitability. His character and background become relevant only once the court strongly and firmly doubts the mother. It also found nothing on record showing the mother was so unfit that Section 6 should be set aside.

• Loophole one: A court cannot make the mother of an infant prove her suitability for temporary custody. That reverses the burden Section 6 places on the father.
• Loophole two: A visitation order cannot be used as a back door to move the child around. Visitation is distinct from custody. If the child spends several hours or even days away from the custodial parent, temporary custody stands temporarily transferred.

The Court also took serious note of the father leaving the Goa court's jurisdiction with Thalbir without notice or permission. It said this prima facie undermined the court's authority and might even amount to contempt. It held Section 26 of the Guardians and Wards Act, 1890 had been violated. Forum shopping, it said, must be firmly dealt with.

The Court transferred temporary custody to the mother. Both were directed to live at her given address in Betalbatim, Goa, and not to leave the trial court's territorial jurisdiction without prior leave. The father got visitation from 2.30 p.m. to 6.00 p.m. on Tuesdays and Thursdays, and from 2.30 p.m. to 9.00 p.m. on Saturdays. These orders are purely temporary, and the Civil Judge was told to decide the pending petition expeditiously.

• Gather the case file and proof of age. You need the pending custody petition, every earlier order on custody or visitation, and records showing the child is below five, because the presumption depends on that age. A father who alleges the mother is unfit must put in evidence of that unfitness. In this case an unproved bipolar allegation failed.
• Use the court already hearing the case. Roxann Sharma's case was filed under Section 6 of the Hindu Minority and Guardianship Act, 1956 before the Civil Judge, Senior Division, at Margao. Section 14 of the Guardians and Wards Act, 1890 reflects the need for one court to deal with a child's custody dispute, so ask that court for interim custody or visitation. Do not open a parallel fight elsewhere.
• Avoid the costliest mistake. The father's quiet move to Mumbai with the child, without telling the Goa court, drew the Supreme Court's strongest criticism. Do not shift the child out of the court's jurisdiction without permission, and do not ask the mother of an infant to prove her suitability when Section 6 puts the burden on the father.