The law governing custody of children is closely linked with that of guardianship. Custody is a narrower concept relating to the upbringing and day-to-day care and control of the minor.
After a marriage breaks down or ends up in separation of spouses, the person who gets affected the most is the children who are born out of the marriage. Thus, while keeping in mind the right of parents to the custody of a child, the Indian Law, holds the child’s welfare as the most crucial factor of consideration while deciding upon who gets the custody of a minor child. The term “custody” is not defined in any Indian family law, whether secular or religious Child Custody Laws In India
After the dissolution of a marriage, custody of a child can be given as: Child Custody Laws In India
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Joint Physical Custody: A new concept that has evolved while negotiating divorce settlements. Both parents will have legal custody, but one will have the physical custody (child resides with him or her) and will be the child’s primary caretaker. Child Custody Laws In India
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Sole Custody: One parent has been proven to be an abusive and unfit parent and the other parent is granted custody. Child Custody Laws In India
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Third-Party Custody: Neither of the biological parents is given custody of the child. Instead, child custody is granted to a third person by the court. Child Custody Laws In India
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Legal Custody: Legal custody of a child does not necessarily entail having the child with the parents or vice-versa. It basically means that the parents are granted legal custody and they can make every decision for the child likewise education, medical treatment, etc. In most cases, legal custody is granted to both the parents together but in certain cases where the divorce is messy and parents do not agree with each other, then in such cases, the court grants legal custody to any of the one parents.
Read Also: Family Court in India
LEGISLATIONS GOVERNING CHILD CUSTODY UNDER DIFFERENT LAWS IN INDIA: Child Custody Laws In India
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Section 26 of the Hindu Marriage Act 1955
It deals with the maintenance, caring, and education of the child, and only when both the parents follow the Hindu religion, the custody of the child gets validated. Under this act, the court can pass orders, judgments, amendments, etc. at any point in time with respect to the maintenance of the child and dispose of the pending decree within the 60 days from the date of service of notice.
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Section 38 of the Special Marriage Act 1954
This act validates the custody of the child in case both the parents belong to different religions or have undertaken a court marriage. Under this act, the court can pass orders, judgments, amendments, etc. at any point in time with respect to the maintenance of the child.
Section 38 empowers the district court to pass interim orders during the pendency of proceedings and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible.
3. Guardians and wards act:
This Act is a secular law regulating questions of guardianship and custody for all children within the territory of India, irrespective of their religion
4.The Hindu Minority and Guardianship Act:
Classical Hindu law did not contain principles dealing with guardianship and custody of children. However, in modern statutory Hindu law, the Hindu Minority and Guardianship Act provide various provisions concerning the matters of guardianship and custody of minor Hindu children.
- Recently, the Supreme Court had stayed an order of the Gujarat High Court asking a mother to take her eight-year-old son to the United Kingdom, because of a judicial order passed there in a custody battle initiated by her estranged husband. Under Indian law, maximum importance is given to the best interests of the child and so either parent does not have a clear primacy to be granted the custody of the child.
THE PARAMOUNT CONSIDERATION Child Custody Laws In India
While taking a decision regarding custody or other issues pertaining to a child, “welfare of the child” is of paramount consideration, Sheoli Hati v. Somnath Das, (2019)7 SCC 490.
It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the court. It is the welfare of the minor and of the minor alone which is the paramount consideration,
Factors Considered While Custody
The crucial factors which have to be kept in mind by the courts for gauging the welfare of the children and equally for the parents can be, inter alia, delineated, such as
(1) maturity and judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character; (5) ability to provide continuing involvement in the community; (6) financial sufficiency and last but not the least the factors involving a relationship with the child, as opposed to characteristics of the parent as an individual, Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC311.
Where to File an Application for Custody of a Child
SECTION 9 of the Guardians and Wards Act, 1890 makes a specific provision as regards the jurisdiction of the court to entertain a claim for grant of custody of a minor. The solitary test for determining the jurisdiction of the court under Section 9 is the “ordinary residence” of the minor. The expression used is “where the minor ordinarily resides”. Now whether the minor is ordinarily residing at a given place is primarily a question of intention which in turn is a question of fact. It may at best be a mixed question of law and fact, but unless the jurisdictional facts are admitted it can never be a pure question of law, capable of being answered without an inquiry into the factual aspects of the controversy, Ruchi Majoo v. Sanjeev Majoo, (2011)6 SCC 479
Custody Issues and the Sex of the Child
It is now settled law that child custody can go to either parent. On the sociological front, researchers find that boys raised by fathers and girls raised by mothers may do better than children raised by the parent of the opposite sex. However, the children’s adjustment following a divorce has more to do with the quality of the parent-child relationship than with the gender of the child
Father Gets the Custody in The Following Manner: –
In India, it is believed that no one can be a better caregiver than a mother. Unfortunately, it is not true all the time.
Though while giving the custody the mother is given the first priority, the father can get it by following ways:
- If the mother is willing to give up the custody of the child, then the father may get custody.
- If the mother is not mentally stable, the father is the next person to get custody of the child.
- If the child is of 13 years or more and expresses his wish to stay with the father, the Court shall grant it to the father. Child Custody Laws In India
- In case the mother is of an immoral character, which may affect the child as well, the father gets custody.
- If the father can prove the financial incapacity of the mother which shall in future affect the upbringing of the child and also prove his financial capability to take good care of the child.
- If the father can prove that the background of the mother has been in dark and that if the child will stay with the mother it will prove to be fatal to the upbringing of the child or shall affect his mental and physical growth.
(These cases do depend from case to case basis)
Procedure to File Child Custody Case: –
A petition for child custody or declaration regarding the appointment of natural or legal guardian of minor starts child with the filing of the petition by the spouse seeking child custody application for Interim or Temporary custody as well as Visitation Rights. Child Custody Laws In India
The custodial parent is required to give response to the petition following which evidence is led by both parents. After the closure of evidence of both parents and their respective witnesses, if any, follows with final arguments and consequent judgment.
- The Bench, however, gave the man liberty to approach the family court for the enhancement of his visitation rights. (2019)
“We direct the family court to ensure that visitation rights are fixed in such a manner that the child gets to know and love his father. A child has a right to the affection of both his parents and the family court shall ensure that visitation rights are granted in such a manner,” Justice Gupta wrote.
Illegitimate child Child Custody Laws In India
The preponderant position is that it is the unwed mother who possesses primary custodial and guardianship rights with regard to her children and that the father is not conferred with an equal position merely by virtue of his having fathered the child, ABC v. State (NCT of Delhi),(2015)10 SCC1
The child’s psychological balance is deeply affected through the marital disruption and adjustment for changes is affected by the way parents continue positive relationships with their children. To focus on the child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights, Lahari Sakhamuri v. Sobhan Kodali,(2019) 7 SCC 311.
Effect of Remarriage of the Spouse
An impending issue as to what would be the effect of remarriage of a spouse was resolved when the Apex Court in Lekha v. P. Anil Kumar
held that the remarriage of the mother cannot be taken as a ground for not
granting custody of the child to the mother. Similarly, where a father marries
it is not a ground for depriving him of his parental right of custody.
CONCLUSION Child Custody Laws In India
“A child cannot be tossed like a shuttlecock between the parents”. 2 –Justice R.M Lodha and Rohinton Nariman. Child custody is one of the most emotional topics that the judiciary is supposed to deal with, almost every day. In legal terms, child custody is the process of allotting a right to one of the parents to have over the other regarding their child either during or after the decree of divorce or judicial separation is passed. The parent who gains custody of the child is supposed to keep the child under his/her guidance and care, In India, the custody of a child depends upon the personal laws and read with The Guardians and Wards Act, 1890. The foremost thing is to allot the custody of a child to seek the welfare and so if required the other personal law rules and rituals can be set aside.
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