Report No. 18
11. Custody of children.-
Dealing, next, with the question of the custody of children when a marriage is dissolved on account of the conversion of the petitioner, the law on the subject cannot be said to be in a satisfactory state. Normally, it is the father who is the guardian of the minor children, and unless he is found to be unfit the court cannot award their custody to another person. This rule has been applied in some decisions1 even where the dispute has arisen by reason of the conversion of the father, though the courts have been careful to emphasise that the welfare of the children is the paramount consideration on which an order for custody should be made. It is debatable whether this is a correct approach to the question. The right of the father to the custody of children has its roots in his status as pater familias, and it is doubtful if it can survive when he ceases to be a member of the family by conversion.
It might well be said, that when two persons belonging to a particular religion enter into a marriage, they do so in the expectation that they will maintain a home as members of that religion, and that when one of them defeats that expectation by conversion, there is no reason why he or she should take advantage of what is really a breach of faith on his or her part, to the detriment of the other party who is true to the faith. The question can be of importance only in case of conversion of the husband. If, for example, a Christian husband becomes a convert to Islam, and the marriage is in consequence dissolved, and there are children of the marriage, why should the wife, apart from losing the husband, lose also the society of her children?
On the principles already discussed,2 the law applicable to that situation cannot be one recognising any preferential right in one of the parents under the ordinary law, but a rule which will be in accordance with justice, equity and good conscience, and that clearly requires that it is the non-converted spouse that should have a preferential right to the custody of the children. We have provided accordingly.3 That, of course will be subject to the paramount consideration of the welfare of the children.
1. Vide, Mayne's Treatise on Hindu Law and Usage, 11th Edn., p. 290, para. 233, where the decisions are collected.
2. See para. 4, supra.
3. See Appendix I, clause 15(2).