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:
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.
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.