When a couple seeks divorce for various reasons, if the child or children are minors, the legal right to keep and look after the child/ children is called Child Custody. Generally, it pertains to the right given to a child's mother or father but under special circumstances like death of the parent/s it maybe even be granted to the grandparents or a third party relative to become the legal guardian of the child till the child attains majority. Custody can be of various kinds and some of them are listed under:
The crux of the above arrangements for a child are that these custodies are all ordered by the Court and the terms and arrangements for the child-care are decided by the appropriate Court having jurisdiction. In India Child custody is governed by the Guardian and Wards Act, 1890 and Section 26 of HMA for most of the religions. The only exception being Christians who are governed by the Indian Divorce Act 1869 and the Guardians and Wards Act 1890. For obtaining child custody a petition for child custody or declaration for the appointment of a natural or legal guardian of a minor child has to be filed and with the filing of the petition by the parent/third party seeking child custody in a family court having jurisdiction, the process of granting the custody starts in a Court. However, Jurisdiction of Family Court for minor children is non-existent when these children are foreign citizens and not ordinarily residing within the jurisdiction of the Family Court, Ref: Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.
Since such petitions take a lot of time to be decided over, either parent of the child may file an application for Interim or Temporary custody of the child, if there is a circumstance to believe that the welfare of the child is threatened pending the hearing of the Petition or else the Visitation Rights can also be filed by the Non-custodial parent. The provision which deals with such a situation is Section 12 of the Guardians and Wards Act, 1890, making provisions for temporary custody and protection of the person or property of the minor.
Every Court while deciding the custody Petition takes into consideration the following factors before handing over custody to anybody/parents applying for the custody.
On the other hand, if the child is at an age where they can understand the situation, their opinion is also considered by a Court while granting custody. This is governed by sub-section (3) of Section 17 of the Guardians and Wards Act, 1890, Ref: Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 .Under the Hindu Minority and Guardianship Act, 1956 the custody of a child aged under five years should ordinarily be with the mother. The Indian courts have time after time taken view that the mother is always the best and the most suitable custodian of the child. The general rule followed by the Courts is that the custody of a boy or an spinster girl below the age of 18 years and above the age of 5 years shall be given to the father, as he is the natural guardian. But after his death, the custody can be given to the mother. The custody of illegitimate children shall always lie with the mother, without forcing her to disclose the name of the childâ€™s biological father.
Sometimes during the pendency of proceedings or even before filing of a proceeding or after the conclusion of the custody proceedings, either parent may resort to forcibly keeping the child away from the other parent which basically refers to unlawful custody. The proper definition includes, removal of the child from the environment, where it interferes with parental rights of the aggrieved parent. The remedies in such a situation are :
In another landmark Judgment of N. Nirmala v Nelson Jeyakumar (JT 1999 (5) SC 223), the Supreme Court of India, held that depriving a mother of visiting rights was not justified. This helps in cases where the father being the natural guardian tries to deprive the mother basic visitation rights. Therefore, it is of paramount importance for Indian Courts to examine the cases that come to it and return the child, if there has been an unlawful removal of child from the contact of the aggrieved parent.
Although the above guidelines help in understanding child custody, each case in the Court in analysed on the basis of the peculiar circumstances and the final judgments are binding on both parents in the best interest of the child.
Tags: Child Custody, Guardianship, and Unlawful Custody
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