Child Custody in India and What Amounts To Unlawful Custody
Child custody is a very tedious and emotionally wrecking process in a divorce, separation or during any parental death. The main ingredient that the courts check and look into in cases of child custody are the best interests of the child and nothing else matters much. Couples file divorce for various reasons and if during this if the children are minors, then they will become the responsibility of any parent who can take care of the needs of the child. During some instances the custody is even given to the grandparents. This happens if either of the parents die or has been proved incapable of taking care of the child. Adv. Bindu Dubey is one of the top child custody lawyers in Navi Mumbai who has previously with great knowledge and caution handled various child custody cases.
There are various types of child custody cases. It includes Legal custody, which is when the parents will discuss between them as to who will take care of the financial, medical, educational needs of the child. Next is the Physical Custody, where the court will decide as to which parent will gain the custody where the child will live with which parent. This will be the child’s legal residence. Another type of custody includes Bird’s nest custody which means where the parents go and visit the child in their legal residence. This practice is not much used in India. Split custody is when in cases with two or more children the custody will be split between the parents where one parent is given some and the other one given some. Alternating custody is when the court gives a time period as to when the child will be living with one parent and when they will go reside with the other parent. Third party custody is when during exceptional and unimaginable cases the children will be given to a third party other than their biological parents. This third party can be grandparents or close relative or any close friend of the couple.
The main element of these types of custody is that they will be decided exclusively by the courts after analysing the facts and issues of the cases. The rules and regulations will also be put forth by the courts in their respective jurisdictions and child care in that area. The child custody laws in India are done with respect to the Guardian and Wards Act of 1890. Section 26 of the Hindu Marriage Act is also referred from time to time. Cases with respect to child custody for Christians they refer the Indian Divorce Act of 1869 and also the Guardians and wards Act of 1890. First a petition will be filed in a court in the respective jurisdiction by the parents or parties who seek custody of the child. However, in cases where the child is a foreign citizen then the jurisdiction becomes irrelevant and this has been mentioned in the case of ‘Lahari Sakhamuri Vs. Sobhan Kodali’ These kinds of petition take up time of the parties and hence they go with the process of interim custody of the child, if there is any threat to the best interest of the child then also this interim and temporary custody can be filed. This will be done with respect to Section 12 of the Guardians and wards Act of 1890.
There are two main factors that the court will look into before deciding the cases with respect to the Child custody petitions. First main factor is the best interest or the welfare of the children. This means a safe environment for the child to grow up and which parent has a better ethical background with safe mental space for the child is very important to look into before giving custody to the parent. However, a clear equal balance should be created between the emotions of the parents and the child i.e., their attachment emotionally and the best interests of the child. This has been suggested by the court in the case of ‘Srinath Prasad Vs. Nandamuri Jayakrishna’ In another case of ‘Rosy Jacob Vs. Chakramakkal’ the court held that the orders with respect to the custody which has been done with consent of the parties can also be assorted by the court if deemed necessary. This will be done if the main aim is not met properly i.e., the best welfare of the child. The second most important factor is the economical background of the parents which involves the educational qualifications of the parent also and how can they pass it to their children. This will be considered equally important to the first factor of ‘welfare of the child’. In the case of ‘Nil Ratan Kundu Vs. Abhijith Kundu’ the court held that if the child is at an age where they can understand the economical condition of the parents and themselves then their needs and opinions also will be taken into consideration. With respect to the Hindu minority and Guardianship Act of 1956 the provisions mention that the child will by default be given to the mother if they are under five years old.
When we look in to the Unlawful Custody of the Child where during the trial or after the trial i.e., after the decision of the court the parent might forcibly or with violence take the child away from the parent who won the custody. Unlawful custody in law terms is when a child is removed from the surroundings where this meddles with the rights and powers of the parent who won the custody. In this kind of unlawful custodies, there are various ways the aggrieved parent can ask for justice.
1) The parent can file petition under Guardians and wards Act of 1890. In this Section 9 mentions this process. Here it has been stated that the normal residence of the child will become his residence during divorce proceedings.
2) The aggrieved party can file petition in either High court or the apex court i.e., the supreme court. They will be allowed to file a writ petition in the form of Habeas Corpus.
3) There are various precedents which show many ways as to how the aggrieved parent can approach the court and in a case of ‘Nirmala Vs. Nelson’ the court held that not allowing a mother to see their child is not valid or fair.
All the laws, provisions, rules, regulations and Acts mentioned will help everyone in getting a clear idea as to how one can proceed with the child custody cases and during unlawful custodies. However, each case will have to dealt differently with respect to their facts, issues and other factors. The final verdict of the court will be in such a way which will be in the best welfare of the child and will bind on both the parties. Adv. Bindu Dubey is highly capable of analyzing the facts and issues in depth and curate accurate arguments which will help the clients win the case.