April 03, 2023 | Family LawThe issue of Child Custody crops up during divorce proceedings or judicial separation; it becomes an important issue to be decided by the courts.
The issue of child custody crops up during divorce proceedings or judicial separation; it becomes an important issue to be decided by the courts.
The issue of child custody crops up during divorce proceedings or judicial separation; it becomes an important issue to be decided by the courts. It refers to the process of controlling, caring and maintenance of the child less than 18 years of age by the custodial parent (the rights being granted by the court) under set parameters such as financial security, understanding with child, lifestyle etc. The prime right of nurturing the child for educational development medical emotional physical etc. lies with the custodial parent while the non-custodial parent holds the right to access and meet the child.
In innumerable cases, 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, keep the best interests of the child as of paramount importance.
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, India also sanctions laws pertaining to different religions.
The Hindu Laws are applicable only if both the parents are Hindus. The reforms and regulations set for gaining custodial rights under the Hindu laws are prescribed in three different acts:
According to Muslim law, only the mother has sole custody of the children under the Right of Hizanat unless she is proven guilty of misconduct. The father is given the Right of Hizanat only in the absence of an able mother.
Certain general principles adopted for custody of a Muslim child are –
The custody of a child can be primarily claimed by either the mother or the father. In case either of the two is deceased or not in the picture because of operation of any other law, the maternal and paternal grandparents, any other relative(s) of either of the parents strictly out of compassion towards the child can seek custody of the child. The Court can also appoint a third person to be the guardian of the child.
The Hon’ble Supreme Court and other courts in India have reiterated time and again that in the proceedings for custody of a minor, the welfare of the minor is the only consideration, irrespective of the claims of the parties to the custody.
The Mother of a minor cannot be discarded as the guardian just because she earns less than the father. The father has to provide for the child’s maintenance in such a case as it is a well-established principle of law that a step-mother has the primary obligation of affection towards her children and the father would be at work all day, and hence, the mother would be the better guardian for the welfare of the minor child.
While dealing with a case of custody of a child removed by a parent from another country to India in contravention of the orders of the court where the parties had set up their matrimonial home, the Hon'ble Supreme Court has held that a child can seek refuge under the parens patriae jurisdiction of the courts in India. Further, the Apex Court has noted that India is not yet a signatory to the Hague Convention of 1980 on “Civil Aspects of International Child Abduction”, and courts in India must consider the question on merits bearing the welfare of the child as of paramount importance.
The consideration of paramount importance in a proceeding for the custody of a minor is the welfare of the child. No legal right, preferential right or any other right holds more importance than the well-being of the child. Any court of law grants custody to that party who can assure the court that the welfare of the child best lies with them.
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