Law of Child Custody in India
The custody of a child after separation of parents is a hot topic for most couples/parents going through a divorce. It is an extremely bitter process wherein at the end of the day it is ultimately the child who has to suffer due to an ongoing dispute between its parents. The issue of custody of the child, joint custody after a decree of divorce, visitation rights during the pendency of divorce proceedings, communication through video call or telecommunication are the most important issues the courts must decide.
The custody of a minor child below the age of 5 has to be with the mother wherein the mother is inherited with the right of legal and natural guardianship of the child. However, upon attaining the age of 5; the childs natural guardian is automatically the father. However, the issue of custody of the child is decided on only factor “ the best interests of the child “. The courts are also inclined to decide the custody of the child depending on the financial security, maintenance of the child with regard to the lifestyle, healthcare, emotional & physical development. The other parents is usually granted visitation rights & access to the child vide telecommunication.
Custodial rights under Hindu law
The marriage and the subsequent separation laws are dealt with by the personal Hindu Laws. The Hindu Minority and Guardianship Act, 1956, the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 stipulates the rules and regulations for the transfer of custodial rights of a minor after separation:
1. Section 26 of the Hindu Marriage Act, 1955
The provisions stipulated under Section 26 of the Hindu Marriage Act addresses the education and the maintenance of the child only when both the parents are followers of the Hindu religion. Under this law, the orders can be passed at any juncture of time, overriding the pending decree within a period of 60 days from the date of service of notice.
2. Section 38 of the Special Marriage Act, 1954
The provision deals with the custodial rights in case of the parents belonging to different religions. Under this law, the orders can be passed at any juncture of time, overriding the pending decree within a period of 60 days from the date of service of notice.
3. Hindu minority and Guardianship Act, 1956
The provisions do not take into consideration the third party custodial rights. The provisions of this Act talks about the custodial rights between the biological parents only and subject to the fact that they are Hindu
Custody of child under Muslim law
Under the provisions of Muslim Law, the natural custody of the child rests with the mother until the child reaches the age of seven after which the father is considered the natural guardian. The age limit is set to seven since the age of being considered a major is directly synonymous to the age of puberty.
Custody of child under Christian law
The custodial rights of a child after the separation of a Christian parent is dealt under the regulations set in the provisions under Section 41 of the Divorce Act, 1869. The child’s welfare plays a vital role as the parents have to prove themselves capable of the responsibility of rearing the child. The court may deny custody in case it is not satisfied with the abilities of the parents.
Custody under Parsi law
The custody rights are managed by the Guardians and Wards Act, 1890. The Act primarily aims at the betterment of the child and has multiple legal provisions to ensure the same.
Factors which contribute to the welfare of a child
The family courts when handing over the custodial rights to one of the parents, the decision is based on the attempt to assure the best possible future of the child in question. The question of welfare is decided on four distinct parameters; they are:
- Proper ethical upbringing of the child
- Assurance of safety of the child.
- Providing quality education.
- The financial resources available to the guardian of the child
Forms of child custody available in India
Physical custody of the child
When a parent is awarded a decree of physical custody, it means that the child will be under the guardianship of the parent and the other parent shall be given due permission so that they can meet with the child from time to time. This form of custody is the most prevalent method to ensure that the child gets all the benefits of family and has the best upbringing possible. The environment around the child is made fulfilling and enriching while trying to not deprive the child of affection of his parents during his formative years.
Awarding of joint custody
In cases of joint custody, the custody rights are vested in both the parents allowing them to keep the child in turns. Joint custody, contrary to the common belief, does not mean that the separated couple still have to share the same roof even after the courts have ratified their divorce. The joint custody happens to be one of the best solutions in the custody battle primarily because of two reasons. First and foremost is the fact that no parent feels deprived. No matter the term, custody rights cannot be compared with access rights. Hence, the grant of joint custody rights ensures that both the parents play a significant part in the growth of the child’s life. The second advantage of a joint custody is that the child gets the affection of both the parents equally. No matter the arrangements, the child who has gone through the separation of his or her parents is left with a psychological scar. This arrangement allows the child to receive the attention of both his parents equally.
Third party custody
As the name suggests, the custodial right lies with neither of the biological parents. This is because the court deems that both the parents are incapable of raising a child and to let anyone of them have the rights of the child would not be beneficial for the child. A third party who is in some way related to the parents is given the right to be the guardian of the child.
Sole custody
In case of sole custody, the entire right regarding the custody of the child relies on one biological parent. The other parent is completely kept away and is not given any right over the child due to previous history of abusive behavior, or are incapable of being beneficial to the child in some fashion.
Determination of the kind of custody to be granted
Until the court pronounces a final order based on the above stipulated conditions, the parent who is vested with the custody of the child ends up with the physical custody as well as the legal custody of the child. Any other form of custody or any other arrangement will be made clear by the court and the clarification shall be informed to both the parents.
Custody rights of a child and who can claim it
The custody of the child can be claimed by either the mother or the father after the divorce or the judicial separation. However, in situations where both of the parents are deemed unfit for custody or both of them are deceased, the grandparents from the maternal or the paternal side or some other relative of the separated family can claim the custody rights of the child. In most cases, the court appoints a third person as a guardian in order to ensure proper safety of the child.
Determination of the priority of claim of custody
The custody battle for the child is an intense and a delicate issue for the court. When presented with the question, the apex court of India, i.e., the Supreme Court and other courts as well have held that the only criteria to adjudge the vesting of custody rights is the benefit of the child.
As per the provisions of both the Hindu Law and the secular law, the custody of a child below five years of age is generally given to a mother.In cases of older boys, the fathers are generally given the custody while the mother is awarded the custody of older girls. During the process of determining the decision of whom to vest the custodial rights of the child, the child’s views are also taken into consideration if the child is above nine years. Since the main criteria is the well-being of the child, mothers who have been abusive in the past are not given custody rights after separation.
