Q: What factors are considered to determine the custody by the court ?

Ans: 

Although exhaustive and objective criteria cannot be laid down, for determining as to what is in welfare of the child, a Court broadly considers the following:

 (i ) Comparison between financial capacity and upbringing abilities of parents

(a) A Court may consider as to which of the two parents has better financial stability to provide for the child's essential needs, education, homely comfort, and daily upkeep; and which of the parents can better provide for the child's development. 

(b) A Court may consider as to which of the two parents can foster better intellectual development and inculcation of moral and ethical values in the child.

ii) Criminal history of parents: 

A Court may ensure that the parent to whom custody of the child is given or retained, does not have any history of abuse or criminal history that may cause prejudice to the child. For example, if a parent has faced criminal charges in the past, it is highly likely that it may cause the Court to understand that parent might not be able to foster a child's moral structure adequately.

iii) Wellbeing of parents:

A Court may consider the mental and physical wellbeing of parents so as to ensure that custody is not entrusted to a parent, who is mentally and physically unwell. This is essential since the physical and mental state of a parent plays a huge role in the child's development, more particularly, when he or she is likely to be raised by a single parent.

iv) Intention behind seeking custody : 

A Court may ensure that there is no malicious force driving the parent who is seeking custody. For instance, it will be ensured that the child is not being used as leverage by either of the parents against the other to gain an upper hand in some other litigation that may concern divorce or maintenance or any such issues.

Apart from the aforesaid factors that can be said to command some objectivity, several other subjective factors also weigh in the mind of Courts while determining as to what is in the welfare of the child.

v) Age and sex of child:

Often, the age and sex of the child plays an influential role in determining which of the parents can appropriately look after his or her welfare. For instance, if the child is a tender-aged girl, it is ordinarily considered that the child primarily requires mother's care and attention, or if the child is a girl on the advent of her puberty, absence of female company in the house of the father may be a factor likely to go against the father's claim for custody.

Also, with regard to age of the child, section 6(a) of the Hindu Minority and Guardianship Act, 1956 prescribes that the custody of a minor, who has not completed the age of five years states as under shall ordinarily be with the mother. It states as under: 

"Section 6. Natural guardians of a Hindu minor.-The natural guardians of a Hindu minor; in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are-

(a) in the case of a boy or an unmarried girl-the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; 

The use of the word 'ordinarily' in this provision ordains a presumption favoring the vesting of custody of a child below 5 years with the mother. However, if the father successfully rebuts the presumption by establishing that it is not in the welfare of the infant child to be placed in the custody of its mother, an exception may be created and the custody may be entrusted to the father though the child may not have completed the age of 5 years.