Custody

What is Custody?

Custody refers to immediate charge and control (as over a ward or a suspect) exercised by a person or an authority. It also means apprehending someone for protective care. Although law does not define the term definition of custody, it finds its presence in criminal law and laws related to the protection awarded to take care of a child which came to be known as guardianship. Custody has different meanings attached to it when viewed from different laws. The term custody has to be understood with reference to the context of where it is being used.

Official definition of Custody

As the law fails to define the term custody Law Commission’s Report No 273 has provided a more understandable approach with the aim to simplify the term. It states that although the term custody has to be understood with reference to the context in which it is used. In Niranjan Singh v. Prabhakar Rajaram Kharote, the Supreme Court while dealing with the meaning of custody within the purview of Section 439 of Code of Criminal Procedure,1973 ("Cr.P.C") observed: “When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law.”

Types of Custody

Police Custody

When the suspect is arrested and brought to the concerned police station after the receipt of information about a crime by the police, it's called police custody. It's done to prevent the suspect from committing further offences. It is the custody of a suspect by the police in jail at the police station, to detain the suspect. Police custody may extend only upto a period of 15 days from the date custody begins on the orders of magistrate. In State (Delhi Administration) v. Dharam Pal, it was held that a person must be sent to police custody within 15 days from the date he is produced before magistrate under Section 167 of Cr.P.C.

Judicial Custody

Judicial custody means an accused is in the custody of the concerned magistrate. In this case the person is kept in the prison on the order of the relevant magistrate. In judicial custody, the security is provided by the judge/magistrate. Judicial custody may extend to a period of 90 days for a crime which involves a punishment of death, life imprisonment or a period of imprisonment exceeding 10 years and 60 days for all other crimes if the magistrate is convinced.

Child Custody

It refers to the court’s determination of which parent, relative, or other adult should have physical and/or legal control and responsibility for a minor child under 18. There is a difference between physical custody which determines where the child will live, and legal custody, which gives the custodial person the right to make decisions for the child’s welfare.

Personal laws deal with the subject matter of custody or guardianship, with Guardian and Wards Act, 1890 (“GWA”), being the sole secular law on this subject. GWA authorises the court to appoint guardians of the person or the property of a minor, when natural guardian as per the minor’s personal law or the testamentary guardian appointed under a will fails to discharge his duties towards the minor. Under Hindu Minority and Guardianship Act, 1956, the father is the natural guardian of a minor, and after him, it is the mother. However in case of a minor who has not completed five years of age, mother shall be the natural guardian. In Islamic Law, father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty. Guardianship of Parsi and Christian children is governed by GWA.

Additionally, Protection of Women from Domestic Violence Act, 2005 (“DV Act”), also serves as a remedy for both women and children. Under Section 21 of the DV Act, an aggrieved mother can approach the court for obtaining an order for custody of her child. The child’s well being is prioritised in such cases and the court may grant the father visitation rights or restrain him from meeting the child if it interferes with the child’s welfare in any manner.

Protective Custody

Protective custody is the confinement, voluntary or involuntary, of a person who government authorities believe will be threatened without such confinement. Under Section 9 of Juvenile Justice (Care and Protection of Children) Act, 2015, a child alleged to be in conflict with law shall be granted bail or sent to an observation home or place of safety. A child cannot be kept in police lockup or jail.

Also known as

Remand