In this article, we are going to take a look at the provisions of the law when it comes to child custody in the event of separation or divorce in a marriage.
Broken marriages are not as much of a taboo any more as it used to be a few decades ago. With the rise in education levels of the girl child and employment amidst women, many times couples are able to address and accept the breakdown of a marriage without worrying too much about the financial implications of it. Many couples separate amicably and move on with their lives. The one thing that creates extreme bitterness during separation however is child custody. Not only is it ugly, but also tricky and tedious. The laws can be very vague sometimes in these matters because when it comes to child custody, the court has to pass a judgement that is in the best interest of the child. And it is difficult for a judge, who has no detailed context of the separation or the dynamics of the relationships within the family.
Generally, after a divorce or judicial separation, the children need to be given a definite place of residence with either of the parents in case of children below the age of 18 years. Every parent has certain rights and duties towards their children, which becomes the main point of contention on separation.
Child Custody Rights In India
As mentioned before, under the Indian Law, the welfare of the child is given the utmost importance in settling a matter of child custody. The parents can present their version of events and project their case from their perspective. But the judge will eventually rule on the basis of what the child will need going forward and which one of the parents is most suited to address those needs. The parent who can provide the child with better financial support is usually the one who is granted custody of the child. But there may be other instances where the child may have special needs which are being addressed by one particular parent. In such a case, the judge may award a more customised custody solution.
However, the law is specific about certain things and these are not contendable. Custody of children below the age of 5 years is by default given to the mother unless the mother is proven to be unfit for raising the child. Children above the age of 9 years are given a chance of choosing their custodial parent. Later, by introducing various types of custody an equal opportunity is given to the father to obtain the custody of the child.
Types Of Child Custody
The court declares either of the parents to be the custodial parent. It is this parent with which the child will live and be brought up. Usually, if the divorce is amicable or mutual, then the parent who has not been granted physical custody is allowed certain visitation rights.
Joint Physical Custody:
This type of custody is a product of more recent developments. When both the parents come to a consensus as far as raising the child is concerned, the judge may award legal custody to both the parents. However, the physical custody is overtaken by either of the parents, making that parent the primary caretaker.
In cases where one parent is declared unfit by the court for obvious reasons the other parent receives exclusive and sole custody of the child. In such cases, visitation rights for the secondary spouse is not usually allowed.
In certain cases, it may be proven that neither parents are fit to raise the child or rather there is a third party, who is usually a close relative, who is capable of taking better care of the child and is voluntarily willing to do so, then the court may grant custody to the third party.
Legal Provisions For Parental Custody
The Guardians and Wards Act, 1890 is the common law that provides remedies for parents undergoing custody battles after divorce. The regulations and redressal for custodial issues of parents universally fall under the ambit of this act. The act pertains to general laws irrespective of the religion of the parents. However, India being a secular state, has its own personal laws governing people of various religions according to their customs as follows
Custody Under Hindu Laws
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 two different acts:
- Section 26 of Hindu Marriage Act, 1955 bestows the authority of passing interim orders, judgments, amendments, etc. with respect to the child’s maintenance and can dispose of the pending decree within 60 days from the date of service of notice to the courts.
- Hindu Minority and Guardianship Act, 1956 declares that only biological Hindu parents have the rights to seek the custody of their minor child.
Custody Under Muslim Law
According to the Muslim law, only the mother has sole custody of the children under the Right of Hizanat or Custody unless she is proven guilty of misconduct or proven unfit. The father is given the Right of Hizanat only in the absence of an able mother.
Custody Under Christian Laws
There are no prescribed laws for child custody in the Christian laws but the issues are sorted by Section 41 of the Indian Divorce Act,1869.
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Custody Under Special Marriages Act
There is a fourth option for couples as far as provisions of child custody are concerned. These provisions fall under the ambit of the Special Marriages Act. Section 38 of Special Marriages Act, 1954 validates the child’s custody in cases where the parents belong to different religions or have taken a court marriage and explains the powers of the court over providing judicial custody. In such cases, the judge has to apply his or her own discretion in alignment with the principles of natural justice as there is no religious dogma that bears any weight under this act.
The child support provided by one of the parents can be changed by the courts as per the welfare of the children, as the court is the parents patriae, i.e. the ultimate guardian. Parents can agree to make the payments in either full lump settlements or staggered payments. Once the divorce is granted, the court becomes solely responsible for the children and any decision made thereafter is done for the best interest of the child.
As times change, so do the mindset of the people. The courts have started to consider the custody disputes as a right of the child rather than the right of the parent. The best interests of the children are given at most importance while resolving a custodial right dispute. However, unlike western countries where dissolution of marriages is as routine as any other court matter, in India, the courts take cognizance of the cultural importance that marriage bears and has its own ways of approaching separation or divorce cases. So it is always better to seek advice and engage with a counsel who is not only aware of the regulations and technicalities of family law but has hands-on experience with the same. If you have any other queries with regards to family law or are looking for help to settle some family law related issue (Ex: United States Law Regarding Custody of Children), contact us and we will ensure that you receive immediate attention from our highly experienced team of lawyers to understand your requirements and guide you as far as your needs are concerned.