Child custody issues arise when parents separate. In this blog, Vakilsearch sheds light on different laws regarding the custody of children of different religions
Child custody is one of the most challenging aspects of divorce. It has a direct impact on both parents, their children and the well-being of that child. This is why it is important to understand how child custody works in India. In this blog, Vakilsearch will be explaining everything you need to know about child custody in India. This is because it works compared to the western countries where most divorces are settled.
What Is Child Custody in India?
In India, both parents have legal rights to the child. This means that the mother has the right to raise and care for the child and is entitled to visitations with the child. The father has equal rights to raise and care for his children but does not have the right to visitation. The courts do not decide on custody based on which parent is more suitable or better suited to care for the child. In this case, it would be a tie between both parents. This system of custody comes from how society views women as the weaker gender. They would rather give mothers legal rights over children because they believe mothers should be caring for children while fathers should be out working and providing financially for their children.
How Child Custody Works in India
The Indian courts are reluctant to make decisions about child custody and the welfare of children. Child custody is a state-based issue in India, so each state has its own set of rules and regulations. In India, many people prefer joint custody to sole custody. A parent does not have to share custody of their children, and it can either be shared or not. In the event that the parents cannot agree on a joint or non-joint guardianship, the court will decide who will have full custody of their child. In most cases, the court will ask both parents what they want if they cannot agree.
Who Gets Custody of the Children?
The court decides which parent will have custody of the children. It is important to note that the court only considers the child’s best interests in making this decision. In India, it is usual for both parents to have a significant role in raising their children.
In India, even if a parent has been awarded custody of a child, they are still able to provide guidance and care to their children. There are certain circumstances where it would be preferable for one parent to have custody over the other. These include if there is abuse or neglect if there is domestic violence and/or if one parent cannot provide for the needs of their child.
Types of Child Custody in India
- Physical Custody: If a parent is awarded physical custody, it means that the child will be under the guardianship of that parent, with the other parent being allowed to visit the child periodically. This is the most prevalent method of ensuring that the child receives all the family benefits and has the best upbringing possible. The environment around the child must be enriching and fulfilling while trying not to deprive the child of his parents’ affection during their formative years.
- Joint Custody: The most common type of child custody is joint custody. Joint custody is when parents share the decision-making rights for their children with one another. This can be a viable option if you and your partner have different interests or are unsure if you want to raise your child in India or send them back home to your country of origin.
- Special Guardianship: The first of the different types of custody that India recognises is special guardianship. Special guardianship refers to when a guardian or other person has legal custody over a child without being the biological parent. This type of custody is only possible if both parents agree to it. There’s an important distinction between legal and physical custody, which you should be familiar with. Legal custody gives power over the rights and responsibilities for raising or caring for the child in question. In contrast, physical custody dictates where the child lives and how much time they spend with each parent. Suppose a court grants legal guardianship to another person. In that case, that person will have full control over all aspects of the child’s life as long as they are willing to provide that amount of care and support. However, if they stop providing care, their right to guardianship terminates immediately.
- Guardianship of Minor Children: Guardianship of a minor child is the most common type of custody that India recognises. This type of custody is when one parent holds the title to their child’s care, maintenance, and education. The other parent has visitation rights, but they are not in charge of day-to-day care and education.
- Partial Custody: If you are a parent in India, partial custody is probably something that you have heard of. Partial custody is when one parent cares for and controls a child without the other parent having any involvement. This type of custody is only allowed for children under the age of 18. In order to get this kind of custody, the parent with partial custody would have to prove that they could provide adequately for the child. The amount of time a parent can keep their child will depend on what kind of partial custody they have.
- Determination of the Kind of Custody to Be Granted: Accordingly, until a court pronounces a final order based on the above-stipulated conditions, the parent who has physical custody as well as legal custody of the child ends up with the child. All other forms of custody or any other arrangements will be made clear by the court, and both parents will be informed of the clarification.
- Custody Rights of a Child and Who Can Claim It: After the divorce or judicial separation, either the mother or the father can claim child custody. In situations where both parents are deemed unfit for custody, or both of the parents are deceased, the grandparents from the mother’s side, the father’s side, or another relative of the separated family can claim custody rights. The court usually appoints a third person as a guardian to ensure the child’s safety.
- Step-Mother vs Custody of a Child: Sometimes, it’s said that the mother can’t be considered capable because she doesn’t earn enough. Therefore, giving her custody rights would not be in the long-term interests of the kid. As it turns out, the father contesting the claims already had kids from his second marriage. She should get custody because being economically weak isn’t a reason not to get custody. Plus, the stepmother’s affection will naturally go to her own kids. Therefore, courts often decide that the mother will get custody. Still, the father also has to pay for the kids’ upbringing.
Laws Governing Child Custody in India
Due to people from many different communities, India has different laws to deal with the issues that arise in society. The central legislations are sometimes at odds with the personal laws in certain situations.
Following the separation of parents, there are several different laws dealing with custody of the child:
- Hindu law’s custody rights: Hindu law governs marriage and separation. The Hindu Minority and Guardianship Act, 1956, Hindu Marriage Act, 1955, and Special Marriage Act, 1954 regulate the transfer of custodial rights after a separation:
- Section 26 of the Hindu Marriage Act, 1955:Section 26 of the Hindu Marriage Act provides for a child’s education and maintenance only if both parents are Hindus. The orders can be issued at any time and override the pending decree within a period of 60 days from the date of service of the notice.
- Section 38 of the Special Marriage Act, 1954: If both parents belong to different religions or have entered a court marriage, this Act validates the right to custody of the child. According to this Act, the court can pass orders, judgments, amendments, etc., at any point of time about child support and dispose of the pending decree within 60 days of the date of service.
- Hindu Minority and Guardianship Act 1956: Third-party custodial rights are not considered in the provisions. The provisions of this Act pertain only to the biological parents and only if they are Hindu.
- Custody of child under Muslim law: In Muslim Law, the natural custody of a child rests with the mother until the child reaches the age of seven, after which the father becomes the natural guardian. As the age of puberty coincides with the age of being a major, the age limit is set at seven.
- Custody of child under Christian law: Following the separation of a Christian parent, a child’s custody rights are governed by Section 41 of the Divorce Act, 1869. As the parents must prove they are capable of rearing the child, the child’s welfare is vital. If the court is not satisfied with the parents’ abilities, it may deny custody.
- Custody under Parsi law: The Guardians and Wards Act, 1890, governs custody rights. Multiple legal provisions are included in the Act to ensure the welfare of children.
India has a strong tradition of family bonds and child care. In Indian society, children are considered blessings from the mother and father. The idea of sharing parental responsibilities evenly is deeply rooted in our culture.
Custody of a child remains one of the most sensitive and convoluted issues when the parents split up. As you can see, custody is governed mainly by what the judges decide. Between the various religious laws and the uniform laws enacted by the state, there’s been a lot of controversy. It doesn’t matter what perspective you take on the law.
A child’s future shouldn’t be put at risk. Resolving various pieces of legislation is mainly about the welfare of the child and social security. Any legal issues need to be addressed and then fixed.