Legislations governing Child Custody in India :Custody of Children

One of the most important issue that arises between the parties at the time of Judicial separation or divorce is the issue of ‘Child Custody’ which needs to be decided by the courts. Child custody means the right of controlling, caring and maintenance of the child under the 18 years of age by the parent having the custody of the child to whom the rights have been granted by court. The decision of the court has to be based on the set parameters such as financial security of the parent, understanding with child, lifestyle of parent, etc. The prime rights of nurturing the child with respect to education, development, medical, emotional, physical, etc… lies with the custodial parent while the non-custodial parent only holds the right to access and meet the child. There are many cases where both the parents are provided with access to the child but the physical custody of the child is usually granted to one parent. The Family Courts while deciding on this need to keep the best interests of the child as of paramount importance

Child Custody in India- Important criteria

There is no fixed criteria or parameter to decide who among the parents should get the custody rights over the child but the Indian Judiciary has held in various judgements that the best interest of the child needs to be given the utmost importance, surpassing all the legal provisions laid down while deciding the question of Custody in such cases. Children being naive and emotional, thus it is incumbent on the judiciary to safeguard their interest, without having to leave them emotionally scarred post the proceedings. Thus the main objective of the Courts, while deciding on custody issues which arise during divorce proceedings is to protect the best interest of the child.

Forms of Custody given

The court generally grants the right of custody over a child either to one or both the parents under certain rules and regulations. The various forms of custody that have been given by the Indian Courts after evaluating various critical conditions of a particular case are as follows:

  1. One Parent Custody : This is generally given by the courts as in this kind of custody the physical custody lies with one of the parent but the other parent is allowed the visitation rights.
  2. Partial/ Joint Custody : where the child is allowed to live with both the parents for a significant period in turns. In this both the parents enjoy all the rights over the child for the time the child resides with them.
  3. Sole Custody : Where one of the parent is abusive, instable, violent or incapable in nature etc. then for the benefit of the child and his better mental development, the courts in India are of the view that such parents should not have any right over the child therefore, only sole custody of the child is given to other parent only.
  4. Third Party Custody : Where in the eyes of court both the parents are incapable of giving proper care to the child then in such cases the child custody is granted to a third person by the court and not to any of the biological parents.

Legislations governing Child Custody in India :

The issues and regulations regarding the custody or the guardianship of a Child in India are generally governed by The Guardians and Wards Act, 1890. This Act is applicable to all the children irrespective of the religion to which the child belongs. However, apart from this secular law, In India people practices different religions namely Hindu, Christian and Islam.  Hence, every religion has a set of personal laws for the child custody which determines the process through which parents can seek the custody of their child.

Some of the processes are as follows:

1. Hindu Law :

Under Hindu law and the various laws associated with it which describes about the reforms and regulations set for seeking child custody are:

a. Section 26 of Hindu Marriage Act 1955: This act deals with the maintenance, education and caring of child and is applicable if and only if both the parents follow the Hindu religion. Under  this act, the court can any point of time pass interim orders, judgments,  amendments, etc… with respect to the child’s maintenance and can dispose of the  pending petition.

b. Section 38 of Special Marriage Act 1954: The act is applicable only if both the parents belong to different religions or have undertaken a court marriage. Under this act, the court can at any point of time pass the interim orders, judgments, amendments, etc… with respect to the child’s maintenance and can dispose of the pending petition.

c. Hindu Minority and Guardianship Act 1956: Under  this act, only biological parents and not step parents are given the right to  seek the custody of their minor child only if he/she is a Hindu.

2. Muslim Law

As per the Muslim Law, only the mother holds the ultimate right to seek the child custody under the Right of Hizanat until she is not convicted  or found guilty of any misconduct.

3. Christian Law

The parents belonging to Christian religion are governed by the provisions laid down under Section 41 of the Divorce Act 1869 for the custody of the child. Further, Sections 42 and 43 of the same act deals with the right to decide upon the child’s custody once the judgment with respect to separation or divorce has been passed.

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