The issue of child custody crops up during a divorce or judicial separation. It is one of the most sensitive topics that the judiciary is supposed to deal with almost every day. In legal terms child custody is the process of allotting a right to one of the parent to have over the other regarding their child during or after the decree of divorce or judicial separation is passed.
The parent who gains the child custody is supposed to keep the child under his/her guidance and care. The other parent can only meet the child as per the guidelines of the court.
Types of child custody in India:
- Physical custody: In physical custody court declares that the child lives with custodial parent and undertakes all the day to day activities.
- Joint physical custody: In this type of custody child lives with both parents for a significant time period. In such time period, both parents come to a consensus of care taking the child or both parents have equal rights on their child.
- Third party custody: In third party custody, the court granted all the rights to the third party. Thus, none of the biological parents have any rights to the child.
- Sole custody: Where one parent is declared to be unfit for the custody of child by the court for any valid reason. Such reason may be abusive, violent, unstable or incapable in nature. Therefore, the entire right of the child lies in the hands of one parent only.
Who can claim custody of a child?
Anyone from the parents of the child can claim the custody of child. In any of the case where both the parents are not in the picture due to operation of some other laws or deceased then in such situation, the maternal or the paternal grandparents or any other relative can claim custody of the child. In many cases, the court appoints the third person as the guardian of the child.
To whom priority is given in child custody cases?
The Hon’ble Supreme Court and other courts in India have repeatedly mentioned that for the custody of a minor, the only consideration is the welfare of the minor, irrespective of the claims of the parties to the custody of children. Under the Hindu law and as well as secular law, the custody of the child under the age of five is usually awarded to the mother.
In most of the cases fathers gets the child of the older boys and mother of the older girls. If the age of child is 9 years or more then his/her choice is considered by the court. A mother is not given the custody if she is found to be ill-treated and neglect the child.
Child custody under Hindu Law:-
The Hindu laws are applicable if both parties are Hindus; the custody of a Hindu child is governed by the Hindu Minority and Guardianship Act, 1956, Marriage Act, 1955 and Guardian and Wards Act, 1890. Some general rules of child custody applicable on Hindus are:-
- The custody of a child below the age of 5 should be given to the mother as it is believed that child of such a tender age needs affection and love which can only be provided by mother.
- It has been a customary practice under Hindu law that the father is the natural guardian and has the ultimate right of custody. This practice has been codified in Section 6 of the Hindu Minority and Guardianship Act, 1956 and the custody of children in India above the age of 5 and below the age of 18 years has been the right of father.
- If the court believes that the parents are unwilling or unable to take care of the child or in his/her best interest, then court can award the custody of such a child to the close relatives. In case close relatives are also not able to dispose of the duties of the parents, then the custody can also be given to a capable third person at the discretion of the court.
- There are certain persons who cannot be given child custody i.e. a person who has certain bad habits that will adversely affect the proper upbringing of the child, a person who is ceased to be a Hindu or converted to any other religion, a person who has renounced the world and does not believe in any materialistic pleasure and a person who is not able to carry out the development of the child in his/her best interest in such a case even mother of a child of a tender age can be denied custody.
- The court while deciding on custody can provide the other parent with visitation rights by passing interlocutory orders. Wherein the other parent can be given some time to visit the child.
Custody under Muslim Law:
Under personal Muslim law, there is a concept called “Hizanat.” In this, the right to a child‘s custody is given solely to a mother unless she is found to be unfit guardian. And this right can be enforced against any person including the father. But justifying the welfare of the child the mother’s right of child custody is not absolute and exists only if such right is beneficial and in the interest of child.
Custody under Christian Law:
The Christian religion needs to follow the laws and reforms set under Section 41 of Divorce Act for child custody. As per Section 41 of the Act, the courts have the right to pass orders as to custody, education and maintenance of the child. The child is given to a person who proved to be a better guardian for the child and the claim can even be denied if the court finds that both the parents are incapable of giving a proper atmosphere to the child.
Custody under Parsi Law:
The custody of a child under Parsi Law is dealt with the provisions of the Guardians and Wards Act. There is no specific law related to child custody under Parsi Law. Under the Parsi Marriage and Divorce Act, 1936, the wife can claim for maintenance to support their minor children.
The child custody laws in India are evolving and now all of them have adopted the uniform practice of keeping the child’s best interest in mind. The custody of a child depends upon the personal laws and read with the Guardians and Wards Act. The recommendations of the Law Commission and the new petitions are thriving for equality among the father and mother in the custody rights. In the present era courts have adopted a tendency of keeping mother and father equally while deciding the child custody case.
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali