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Child Custody Laws in India
After a marriage breaks down or ends up in separation of spouses, the person who gets affected the most is the children who is born out of the marriage. Thus, while keeping in mind the right of parent's to the custody of a child, the Indian Law, holds the child's welfare as the most crucial factor of consideration while deciding upon who gets the custody of a minor child
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 under set parameters such as financial security, understanding with child, lifestyle, etc. The prime rights of nurturing the child with respect to education, development, medical, emotional, physical, etc. lies with the custodial parent while the non-custodial parent only holds the right to access and meet the child.
Types of Child Custody in India
The Judiciary in India, in a number of innumerable judgments, has held the view that the best interest of the child in Child Custody cases, needs to be given utmost importance, surpassing all the legal provisions laid down.
The court grants the right to child custody either to one or both the parents under certain rules and regulations. Evaluating the sensitivity in this matter, the Indian Law allows parents to seek child custody as per its below mentioned forms. They are:
- Physical Custody: when a child lives with the custodial parent and undertakes all the day to day activities then it is known as physical custody.
- Joint Physical Custody: When The child lives with both the parents for a significant time period. In such a setup, both the parents have equal rights on their child then its known as Joint physical custody
- Sole Custody:In Sole custody, the entire right to live with the child lies in the hands of one parent only. This often happens in cases where in the other parent is abusive, instable, violent or incapable in nature.
- Third Party Custody:In third party custody, none of the biological parents have any right on the child. Instead, the child custody is granted to the third person by the court.
Legislations governing Child Custody under different laws in India:
The Guardians and Wards Act, 1890 is a universal law, pertaining to the regulation and issues involving child custody and guardianship in India, regardless of the religion the child belongs to. However, India being a secular nation practices different religions namely Hindu, Christian and Islam. Hence, every religion has a personal law set for child custody which determines the process through which parents can seek the custody of their child.
- Custody under Hindu Law:
The laws associated under Hindu Law namely, Section 26 of Hindu Marriage Act 1955, Section 38 of Special Marriage Act 1954 and Hindu Minority and Guardianship Act 1956 describe about the reforms and regulations set for seeking child custody. Explore about them in detail.
- Section 26 of Hindu Marriage Act 1955
This act deals with the maintenance, education and caring of child and validates the child’s custody if and only if both the parents follow Hindu religion. Under this act, the court can any point of time pass 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.
- Section 38 of Special Marriage Act 1954
The act validates the child’s custody if both the parents belong to different religions or have undertaken a court marriage. Under this act, the court can any point of time pass 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.
- Hindu Minority and Guardianship Act 1956
Under this act, only biological parents and not step parents are given the right to seek the custody of their minor child only if he/she is a Hindu.
- Custody under Muslim Law
As per the Muslim Law, only the mother holds the ultimate right to seek her child's custody under the Right of Hizanat until she is not convicted or found guilty of any misconduct.
- Custody under Christian Law
The child’s custody for parents belonging to Christian religion need to follow the reforms and laws set under Section 41 of the Divorce Act 1869. In addition to this, Section 42 and 43 of the same act hold the right to decide upon the child’s custody once the judgment with respect to separation or divorce has been passed.
Children being naïve and emotional, thus it is incumbent on the judiciary to safeguard their interest, without having to leave them emotionally scarred post the proceedings. Thus the main objective of the Courts, while deciding on custody issues which arise during divorce proceedings is to protect the best interest of the child.
