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Legality Of Child Custody In India

Advocate Bindu > Family Court Advocates  > Legality Of Child Custody In India

Legality Of Child Custody In India

Woman standing with kids and man standing on opposite side.

Child Custody Law in India

Child Custody comes into play when a couple wants to part ways by getting a divorce and the legal right will be decided as to whom it will be given, mother or father. Cases and situations relating to child custody will make an appearance during divorce, annulment, separation, adoption or parental Death. After the parents get the divorce the child/children should be provided with a permanent place with either of the parents. This is the case when the child is below 18 years of age. The benefits of the children are taken into account with the utmost importance than the needs of the parents.

The financial, mental and social well-being of the parent will be monitored to see who will be better fit to raise a child. In cases where the child is below 5 years of age the custody by default will be given to the mother. The exception for this is when anyone can prove to the court that the mother is unfit to raise a child. Children who are above the age of nine will be given the option to choose which parent they want to go and live with. However, in the end both the parents will be given equal opportunities to take care of the child depending on the situation of the case.

The problems relating to child custody has increased immensely during the corona Pandemic as the divorce rates have spiked up in the lockdown. In Mumbai, it has been recorded that the women related issue cases and divorce cases has increased by three times since COVID-19 lockdown. It can be seen that from an average of 1000 cases per month it has increased to 3000 cases per month and the demand for advocates has also equally increased. With respect to this Adv. Bindu Bindu Dubey  is one of the top and the finest child custody lawyer in Mumbai.

There are various types in child custody namely Legal custody; Physical custody; Sole custody; Joint custody and Grandparent Visitation and Custody.

LEGAL CUSTODY: This type of custody is not necessarily the parents living with the child but the parents are given the duty and opportunity to take all the major decisions in a child’s life including medical treatment, educational choices etc. almost at all times both the parents divide the duties and responsibilities but when the divorce is not mutual and is in chaos the court will decide who will obtain the legal custody.

SOLE CUSTODY: This is when the custody is given to only one parent as the other one is deemed unfit to raise a child.

PHYSICAL CUSTODY: This means when the custody is given to a parent and the child will be under the guardianship of that parent. However, there will be periodical visits from the other parent. The main aim of this type of custody is to provide the children with a better-quality lifestyle through child maintenance and at the same time is not deprived of the love and care from both parents.

JOINT CUSTODY: This is a very common arrangement for divorced parents as well as unmarried parents. This is when the child will be given time with both the parents separately and equally.

GRANDPARENT VISITATION/CUSTODY: This will be done with respect to the situation of the case taking into account the best interest of the child.

The Provisions for the Custody of Child under Indian Law

The Indian law has put forth various provisions for the Custody of a child. Various laws have been legislated with respect to the personal laws of the Nation along with the Guardians and Wards Act, 1890. However, the main important objective of the custody act is to look into the welfare and needs of a child hence if deemed necessary the personal laws at times will be set aside. The Guardians and Wards Act, 1890 is the standard legal provision for the cases pertaining to the custody of child or children. The child custody cases for parents universally will be dealt with respect to this Act i.e., The Guardians and Wards Act, 1890. This Act puts forth the general laws and regulations regardless of the religion of the parents. However, In India along with the Guardians and Wards Act, 1890 the personal laws of the religions are also taken into consideration.

UNDER HINDU LAW: The provisions for the custody of child or children under the Hindu law has been separated and mentioned in separate Acts;

  • The Hindu Marriage Act of 1955 provides the law for passing of the judgement, orders, amendments etc. This has all been mentioned under Section 26 of the Act. It has been laid down in this Act for the child’s maintenance, the pending decree can be disposed within 60 days from when the service notice has been issued to the courts.
  • In another Act called as the Hindu minority and Guardianship Act of 1956 it has been stated that the Biological Hindu parents will be allowed to ask for the custody of their children. This Act also states that children below five years of age will be given to the mothers and custody of boys and unmarried daughters will be given to father subject to exceptions.
  • The custody of illegitimate children will be first given to the mother later the father.

UNDER MUSLIM LAW: Under the Muslim law the custody of the children will rest with the mother unless and until she has been proved unfit in front of the court. This by default method of the custody of the child is known as HIZANAT. The mother’s right over the child is not absolute and this will only occur when it is shown to benefit the child’s needs and welfare. Similarly like the idea of the courts the Muslim law also puts the welfare of the child/children as their main aim and objective.

UNDER CHRISTIAN LAW: The Christian laws do not separately have any provisions with respect to the child custody rights therefore the Indian Divorce Act of 1869 is looked into for all the issues relating to the Christian Children and for their guardianship.

Section 41 of the Indian Divorce Act of 1869 states that the courts have the right to pass the orders for the custody, maintenance and for the education of the Christian children. In a case, the Apex court in India stated that all the orders with respect to the custody of minors per se is considered as temporary orders for the present then circumstances. With the passing of time the court is mandated to change the orders in parallel to the welfare of the child.

UNDER THE PARSI LAW: The Parsis of India also like Christians do not have a separate law for the deciding of the custody of the children therefore all the custody related issues will be dealt according to the Guardians and Wards Act, 1890. The Parsi Marriage and Divorce Act of 1936 allows the mother to claim maintenance to support her child/children. The court is mandated to pass an order within 60 days for the guardianship of Parsi Children.

Section 38 of the special marriages Act allows for the custody of the children in situations where the parents are from different religions or had a court marriage. In these cases, the court will explain and clarify the process and happenings of the judicial custody

Now a days the courts give more importance to the welfare of the Child rather than the needs and wishes of the parents. As it is important to make sure that the basic needs of the child are taken care effectively i.e., the medical, educational and other needs will have to be fulfilled and at the same time the child has to also experience the care and affection of the parents. The child support can also be changed by the court to the other parent over time according to the welfare of the child or children. It has to be noted that the court is the ultimate guardian i.e., Parenspatriae of the child. Immediately after the divorce is sanctioned the court will become responsible for the child and has the power and authority to take decisions for the child keeping their interests in mind. Therefore, In India child custody cases are very crucial and has to be dealt with utmost care as it paves way for the growth of the child and will have an impact in their future.

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