The issue of child custody at the time of divorce is a perplexing situation for both parents and children. It is imperative to understand the process of child custody in our country. The process involves maintaining, caring and controlling the child who is less than 18 years of age by the parent who is given the custody taking into consideration the parameters such as understanding with the child, financial security, lifestyle etc. The sole right of the child for medical, emotional and educational needs lies with the custodial parent whereas, the non-custodial parent only has the right to meet the child.
There are various cases, wherein both the parents are allowed the access to the child, however, the physical custody is usually granted to one parent only. Nonetheless, the Family Courts, while contemplating on this are required to keep the best interests of the child as of utmost importance.
Types of child custody:
- Physical custody
- Joint Physical custody
- Sole custody
- Third-party custody
Legal Provisions in India for Child Custody:
The Guardians and Wards Act, 1890 is the universal law for issues involving child custody and guardianship in India, regardless of the child’s religion. However, under secular principles, laws pertaining to different religions are also sanctioned in India.
Custody under Hindu Law:
The Hindu Laws are only applicable when both the parents are Hindus. The reforms and regulations mentioned under the Hindu laws for gaining custodial are prescribed in three different acts:
- Hindu Minority and Guardianship Act, 1956 states that only biological Hindu parents have the right to get the custody of their minor child. The right to seek the custody of their minor child is not given to the step parents only if he/she is a Hindu.
- Section 26 of Hindu Marriage Act, 1955 provides the authority of passing judgments, interim orders, amendments, etc. related to the child’s maintenance and can revoke the pending decree within 60 days from the date of service of notice of the court.
- This Act is only applicable when both the parents are Hindus and it focuses on the child’s education, maintenance and care.
- Section 38 of Special Marriage Act 1954 validates the child’s custody when the parents have undertaken a court marriage, or both the parents belong to different religions. The interim orders or amendments for the child’s care and maintenance can be passed by the court at any time and any pending decree can be disposed of within 60 days from the date of service of notice.
Custody under Muslim Law:
As per the Muslim law, under the Right of Hizanat, only the mother has sole custody of the children unless she is proven guilty of misconduct. The Right of Hizanat is provided to the father only in case the mother is not present or alive.
General principles that are adopted for the custody of a Muslim child are as follows –
- Under the Shia law, a mother's right to the custody of her minor son is two years old, whereas in the case of daughter it is until the age of seven.
- Under Hanafi law, custody of a minor son is till the age of seven years and for girls till she attains puberty.
- The mother's custody rights continues even if she is divorced but if she remarries, the custody is given to the father.
- The child’s consent is also considered if he can understand what is right and what is wrong for him. Further, this needs to be cross-checked to find that no tutoring to child is present. If so, the consent of the child is disregarded.
- After the boy is above 7 and a girl has attained puberty, the custody is given to the father as in the case of Hinduism who is also the natural guardian of the child.
- The above mentioned rules are also subject to certain exceptions wherein the parents are denied custody irrespective of their gender. These exceptions are as follows:
i. A person who is not having a sound mind.
ii. Someone who has a bad moral character.
iii. A person who is no more a Muslim and is converted to any other religion.
iv. A woman gets married within outlawed relationships.
v. A person who is not able to take proper care of the child is not given the custody.
Custody under Christian law:
- The Christians do no follow any set of laws for child custody however, Section 41 of the Indian Divorce Act, 1869 makes sure to govern any issues of child custody.
- After the judgment regarding separation or divorce of the parents is decreed, then Sections 42 and 43 of the same Act hold the right to decide upon the child’s custody.
- The child is given to the parent who has the ability to nurture and care the child better and the court can even deny the claim if both the parents are not able to give a proper atmosphere to the child.
- They also have the option of choosing Special Marriage Act, 1954 that provides child custody when parents are from different religion or are married only in court.
Claim Custody of a Child:
Primarily, the mother or the father can claim the custody of a child. However, the grandparents (maternal and paternal) or any other relatives of either of the parents could also seek the custody of the child out of compassion when either of the parent is deceased. This may also be applied when either of the parent is not able to seek the custody due to any other law operating on them.
Priority Claim for the Custody of a Child:
The Supreme Court of India have restated several times that during the proceedings for custody of a minor child, the child’s welfare is the sole consideration, irrespective of the claims made by the parties at the time of custody.
In case When the Mother is Financially Weaker than the Father and the Father has kids from his Second Marriage.
In such a case, the mother can still be given the responsibility of the child even though she earns less than the father. Moreover, it is the responsibility of the father to provide for child’s maintenance as it is well established fact that a step-mother would tend to love her children more than the child and since the father will be at work whole day, the child might need to affectionate and love that he/she desires from the parent. Thus, the mother would be a better guardian for the child’s welfare.
A Child Brought to India from Abroad by a Parent who is a Citizen of India:
While coping with a custody case of a child removed by a parent from another country to India in violation of court orders where the parents had set up their home post marriage, the Supreme Court stated that such a child can take refuge under the ‘parens patriae jurisdiction’ of Indian courts. Furthermore, the Supreme Court has observed that India is not a signatory to the Hague Convention of 1980 on “Civil Aspects of International Child Abduction”, and courts in India must assess the case considering the child’s welfare as their highest priority. importance.
Conclusion:
The paramount importance in the proceedings of a child’s custody should be given to the welfare and care of the child. All the laws and rights are secondary when compared to the well-being of the child. The viewpoints of the judge should not compromise with the child’s future.
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