After a divorce or judicial separation is finalized, the question of a child's custody arises in court and can only be resolved under family law. Read on to know everything about custody law.
Parenting is a task that affects the future health and morale of the child, not just the bragging rights of a desperate parent. In the event of a divorce or annulment of marriage, it is necessary to establish who is legally responsible for raising minor children. The family law courts in India have the authority to decide on this most delicate of provisions.
For most religions, child custody in India is governed by the Guardian and Wards Act, 1890, and Section 26 of the Hindu Marriage Act. Christians are the lone exception, as they are controlled by the Indian Divorce Act of 1869 and the Guardians and Wards Act of 1890.
In this article, we will discuss the legal framework for child custody in India.
Factors That Contribute to a Child’s Welfare
When the family courts grant one parent custody of the child, they do so to ensure the child’s well-being. Four different criteria are used to assess welfare, and they are as follows:
- The child’s proper ethical upbringing.
- Assurance about the child’s safety.
- Imparting high-quality education.
- The guardian to whom the custodian rights are entrusted must be financially stable.
Rights of Parents Over the Child After Divorce
Both parents retain equal parental rights following a divorce in the case of a minor kid. The right to child custody is meant by the term “equal right” in this context.
The family court has the final say on this matter, though. The Guardian and Ward Act, which was passed in 1890 and is mostly secular, is the main piece of legislation with provisions to address the issue.
Contact Vakilseach for further clarity; their legal professionals will solve all of your questions regarding child custody.
Forms of Child Custody Available in India
When granting custody rights, the family court in India may use one of the four forms listed below:
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Physical Custody of the Child
When a parent is granted physical custody, it means that the child will be under that parent’s guardianship,
With the other parent being granted the appropriate authorization to occasionally visit the child. This type of custody arrangement is the most popular way to guarantee that the child receives the full benefits of family and has the greatest upbringing possible.
While attempting to avoid depriving the child of his or her parents’ love throughout this crucial period of development, the atmosphere surrounding the youngster is intended to be pleasant and stimulating.
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Awarding of Joint Custody
In cases of joint custody, both parents are granted custody rights, enabling them to alternately retain the child. Contrary to popular opinion, joint custody does not require a divorced couple to continue living together after the courts have approved their divorce.
One of the better options in the custody dispute is joint custody, primarily for two reasons. No parent should feel deprived, first and foremost. Custody rights cannot be compared to access rights under any circumstances.
Therefore, granting both parents shared custody rights guarantees that both are actively involved in the kid’s development. The child receives the love of both parents equally under joint custody, which is the second benefit.
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Third-Party Custody
As the name implies, neither of the biological parents has the right to custody. This is so that the child would not benefit from having either parent have parental rights, according to the court’s assessment that both parents are incapable of rearing a child.
The right to be the child’s guardian is granted to a third party who is somehow related to the parents.
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Sole Custody
In the case of sole custody, only one biological parent has any legal claim to the child’s custody. Due to a history of abuse, the other parent is either completely cut off from the child and denied any parental rights, or is otherwise unable to provide for the child’s needs.
Who is Eligible to Claim a Child’s Custody Rights?
After a divorce or judicial separation, either the mother or the father may request custody of the child. The maternal or paternal grandparents or another relative of the divided family may,
however, seek custody of the child in cases when both parents are declared unsuitable for custody or both of them have passed away. To ensure the child’s proper safety, the court frequently names a third party as a guardian. India is the residence of people from various
To address the issues arising out of society, communities have various personal laws. The primary laws can occasionally be in jarring contrast to the personal laws in specific circumstances.
Following a parent’s divorce, several different personal laws regulate child custody.
Child Custody Laws Under Different Personal Laws
1. The Hindu Law
The Hindu Minority and Guardianship Act of 1956, which is nearly identical to the Guardians and Wards Act of 1890, covers the guardianship laws in Hinduism. The following are the similarities between these two laws:
If the child is under the age of five, the mother will be granted custody, except in cases where it can be shown that the mother has neglected and abused the child.
Though it is by no means a requirement, the overall regulatory norms of both legislation favor the father in obtaining custody of older males and the mother in obtaining custody of older girls.
Once a youngster has surpassed nine years old, their desire is taken into account.
Apart from the listed provisions, Hindu Law ordains the following:
- Boys and unmarried daughters are placed in the father’s custody.
- The mother is given the advantage of obtaining custody of an illegitimate child, even though the father retains these rights.
- A married woman’s husband is responsible for being the guardian of the girl.
2. The Muslim Law
By the ‘hizanat’ regulations, which govern Muslim child custody, a mother has full custody rights unless she is deemed incompetent to serve as a guardian. It should be mentioned that a mother’s rights aren’t unqualified because the needs of her children come first.
3. The Christian Law
The Indian Divorce Act of 1869 governs child custody disputes because Christian law is quiet on the subject.
The courts may issue decrees about the custody, upbringing, and support of Christian children under Section 41 of this Act. The principle of joint physical custody is largely maintained under the Act.
4. The Parsi Law
Like Christians, the Parsis have not created any rules regarding this clause. The Guardians and Wards Act of 1890 and the Parsi and Marriage Divorce Act of 1936 both address the related concerns as a result.
The later Act offers a wife claiming maintenance to support her husband’s minor children plenty of assistance. The Act also requires the courts to issue a Parsi custodianship order within 60 days.
Conclusion
Even though the court ultimately decides who receives custody of the child, the parents and the child are given preference. Vakilsearch professionals have decades of experience and can assist with any legal matter, including divorce or child custody.
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