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.

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 being granted by court) under set parameters such as financial security, understanding with child, lifestyle etc. The prime right of nurturing the child with respect to education development medical emotional physical etc. lies with the custodial parent while the non-custodial parent 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:

  • Physical custody
  • Joint Physical custody
  • Sole custody
  • Third party custody

Legal Provisions in India for Child Custody:

The Guardians and Wards Act, 1890 is the universal law pertaining to issues involving child custody and guardianship in India, regardless of the child’s religion. However, under secular principles, India also sanctions laws pertaining to different religions.

Custody under Hindu Law:

The Hindu Laws are applicable only if both the parents are Hindus. The reforms and regulations set for gaining custodial rights under the Hindu laws are prescribed in three different acts:

  • Section 26 of Hindu Marriage Act, 1955 bestows the authority of passing 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 of the court.
  • 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.
  • Hindu Minority and Guardianship Act, 1956 declares that only biological Hindu parents have the rights to seek the custody of their minor child, step parents are not given the right to seek the custody of their minor child only if he/she is a Hindu.
  • 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

Custody under Muslim Law:

According to the Muslim law, only the mother has sole custody of the children under the Right of Hizanat unless she is proven guilty of misconduct. The father is given the Right of Hizanat only in the absence of an able mother.

Certain general principles adopted for custody of a Muslim child are –

  • Under the Shia law, a mother's right to the custody of her minor children extends until a son is two years old, and the daughter attains the age of seven. 
  • Under Hanafi law, custody of a child is with the mother till he attains the age of 7 in case of a boy; and till she attains puberty in case of a girl.
  • The mother's right of custody continues even if she is divorced but in case of remarriage, the custody belongs to the father.
  • The consent of the child is taken into consideration if he is held to be able to understand his interests. Further, such consent has to be cross-checked so as to identify there’s no element of tutoring present. In case there is, the consent of a child has to be disregarded.
  • The custody of a boy above the age of 7 and a girl who has attained puberty is transferred to the father who likes in case of Hinduism is considered to be the natural guardian.
  • The above rules are subject to certain exceptions wherein certain people are denied custody irrespective of their gender. These rules are:
    1. a person who possesses a bad moral character;
    2. a person who has ceased to be a Muslim and thereby converted to any other religion;
    3. a person who does not have a sound mind;
    4. the doctrine of ‘best interest of the child’ applies here also and a person who cannot take proper care of the child is not entitled to the custody;
    5. a woman who has married within prohibited relationships.

Custody under Christian law:

  • There are no prescribed laws for child custody in the Christian laws but the issues are sorted by Section 41 of the Indian Divorce Act, 1869.
  • 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.
  • The couples, however, have an option of choosing to be protected under the Special Marriages Act. Section 38 of Special Marriages Act, 1954 validates the child’s custody in cases where the parents belong to different religions or have taken a court marriage and explains the powers of the court over providing judicial custody.

Claim Custody of a Child:

The custody of a child can be primarily claimed by either the mother or the father. In case either of the two are deceased or not in the picture because of operation of any other law, the maternal and paternal grandparents, any other relative(s) of either of the parents strictly out of compassion towards the child can seek custody of the child. The Court can also appoint a third person to be the guardian of the child.

Priority Claim for the Custody of a Child:

The Hon’ble Supreme Court and other courts in India have reiterated time and again that in the proceedings for custody of a minor, the welfare of the minor is the only consideration, irrespective of the claims of the parties to the custody.

Who Will Get The Custody Of A Minor If The Mother Is In A Weaker Financial Condition As Compared To The Father But The Father Has Remarried And Has Kids?

The Mother of a minor cannot be discarded as the guardian just because she earns less than the father. The father has to provide for the child’s maintenance in such a case as it is a well-established principle of law that a step-mother has primary obligation of affection towards her own children and the father would be at work all day, and hence, the mother would be the better guardian for the welfare of the minor child.

Foreigner Child But Has Been Brought To India by Either Parent Who Is A Citizen Of India:

While dealing with a case of custody of a child removed by a parent from another country to India in contravention of the orders of the court where the parties had set up their matrimonial home, the Hon'ble Supreme Court has held that a child can seek refuge under the parens patriae jurisdiction of the Courts in India. Further, the Apex Court has noted that India is not yet a signatory to the Hague Convention of 1980 on “Civil Aspects of International Child Abduction”, and Courts in India must consider the question on merits bearing the welfare of the child as of paramount importance.

Conclusion:

The consideration of paramount importance in a proceeding for the custody of a minor is the welfare of the child. No legal right, preferential right or any other right holds more importance than the well-being of the child. Any court of law grants custody to that party who can assure the court that the welfare of the child best lies with them.


- As on 1st July 2019

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