Report No. 83
History of right to custody.-Coming specifically to the topic of custody of children, the father's right to custody of his legitimate children was complete and exclusive in England in the middle ages. It was only in the 19th century1 that the mother could be awarded access to a child until the child reached the age of seven years. The Act is said to have been passed after the judgment in R. v. Greenhill, (1836) 4 Ad&El 624, [See Warde v. Warde, (1849) 2 Ph 786].
Where there was no testamentary or Court guardian, the mother was, in equity, guardian for nurture.2 Later,3 the mother could be awarded custody of a child until it reached the age of sixteen years. In 1925,4 the mother was given an equal right through the court to the custody of the child and in 1971,5 the mother was given exactly the same rights and authority as the law allows to the father in England.
Illegitimate child.- As regards the illegitimate child, the position was just the reverse in England, in the middle ages, such a child was regarded as a filius nullius.6 By the end of the 19th century, the mother had the right of custody over her illegitimate child.7 The father had no right to custody even though the legislation imposed on him the duty to maintain the illegitimate child. Upto 1971 this position continued, subject to one modification, namely, that in certain cases the orders for custody could not be passed without the father's consent. Now,8 both the parents have the same equal right to apply to the court for custody of the illegitimate child.
1. Custody of Infants Act, 1839 (2 & 3 Vict., C. 54) (Repealed in 1873).
2. R. v. Clarke, (1857) 7 El&B1 186.
3. Custody of Infants Act, 1873 (36-37 Vict., C. 12) and Guardianship of Infants Act, 1886 (40-50 Vict., C. 27).
4. Guardianship of Infants Act, 1925 (15-16 Geo. 5, C. 45).
5. Section 1, Guardianship of Minors Act, 1971.
6. See discussion of Law Commission of India, 62nd Report (Workman's Compensation Act), paras. 2.4 to 2.6.
7. Bastardy Laws Amendment Act, 1872 (35-36 Vict., C. 65).
8. Sections 9 and 14, Guardianship of Minors Act, 1971.