Roxann Sharma Vs. Arun Sharma
The Hindu Minority and Gaurdianship Act, 1956 - Section 6
Section 6(a) proviso - Custody of minor - It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age -This Section or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latter's crossing the age of five years.
Custody of minor - Visitation rights - Held that visitation rights succinctly stated are distinct from custody or interim custody orders - Essentially they enable the parent who does not have interim custody to be able to meet the child without removing him/her from the custody of the other parent - If a child is allowed to spend several hours, or even days away from the parent who has been granted custody by the Court, temporary custody of the child stands temporarily transferred.
Interpretation of statute - Proviso - Sgnificance and amplitude of the proviso - A proviso is in the nature of an exception to what has earlier been generally prescribed.
Section 6(a) proviso - Custody of minor - Who has not completed the age of 5 years shall ordinarily be with the mother - The use of the word "ordinarily" cannot be over-emphasised - It ordains a presumption, albeit a rebuttable one, in favour of the mother - The learned Single Judge use of word "ordinarily" that the Mother has not established her suitability to be granted interim custody of 'T' who at that point in time was an infant - The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother - The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.
Topic(s)-Custody of minor transferred to Mother
Important Decision(s)- If a child is allowed to spend several hours, or even days away from the parent who has been granted custody by the Court, temporary custody of the child stands temporarily transferred.