Child Custody Laws in India

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 (the rights have been granted by court)  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.

In  innumerable cases, both the parents are provided with access to the child, but  the physical custody of the child is usually granted to one parent. The Family  Courts while deciding on this need to keep the best interests of the child as  of paramount importance.

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:

  1. hysical Custody: In physical custody, a child lives with the custodial parent and undertakes all the day to day activities.
  2. Joint Physical Custody: In joint physical custody the child lives with both the parents for a significant time period. In such a set up, both the parents have equal rights on their child.
  3. 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.
  4. 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.  

1. 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.

i. 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.

ii. 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.

iii. 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.

2. Custody under Muslim Law
  As  per the Muslim Law, only the mother holds the ultimate right to seek her  child/children’s custody under the Right of Hizanat until she is not convicted  or found guilty of any misconduct.

3. 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.

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