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Child Custody

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Affidavit for Custody

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Frequent questions, quickly answered.

The  Judiciary in India, in a number of innumerable judgments, has held the view that  the best interest of the child in these cases, needs to be given utmost  importance, surpassing all the legal provisions laid down.

The  court  grants the right to it 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: In physical custody, a child lives with the custodial parent and undertakes all the day to day activities.
  • 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.
  • 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.

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 it.  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.

The Hindu religion didn’t recognise the concept of custody. As it was considered that it is the father who has to look after the welfare of the child and after his death it was the mother who shall be given the custody. But as the time changed the need for a properly codified law regarding the custody of a Hindu child was felt. And for this purpose the Hindu Minority and Guardianship Act, 1956 was passed. The custody of a Hindu child is governed by the Guardian and Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956.

Jains, Buddhists and the Sikhs are also included under the definition of a Hindu.
    • As per the Hindu Minority and Guardianship Act, 1956 the Hindu child below the age of 5 years shall be kept under the custody of the mother as till this age it is only the mother who can give proper emotional, moral as well as physical support to the child.
    • The custody of a boy or an unmarried girl below the age of 18 years and above the age of 5 years shall be given to the father of the child as he is considered to be the natural guardian and only after his death the custody shall be given to the mother.
    • In case the child is illegitimate then the custody shall be with the mother itself.
    • If the parents are not willing to take the custody or if the court thinks that for the welfare of the child it would be better if he is not kept under the guidance of the parents then even a third person may be allotted the custody of a Hindu child. In this case usually, the grandparents be that paternal or maternal will be preferred to get the custody  if they are interested.
    • If neither the parents nor any of the close relatives of the child are initiating to take the custody then the court by itself shall find an appropriate person who could take the custody.
There is a list of persons under Hindu Law who, in any case, shall not be given the custody of the child, they are:-
    • A person shall not be given the custody of a Hindu child if he has ceased to be a Hindu, that is, he has converted to any other religion and no longer remains a Hindu.
    • If a person has completely renounced the world, that is, he is no longer interested in the materialistic world rather he is willing to become a saint in search of emancipation of God then he shall not be given the custody of a Hindu child. For this it is important to prove that the person has in real terms emancipated the world and a mere declaration would not make the person ineligible from his right of taking the custody.
    • A person who would not be able to take proper care of the child due to any of his wrong or unhealthy practices shall not be given the custody of a Hindu child.
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.

The custody of a Muslim child is governed by the Guardians and Wards Act, 1890. A separate law for the custody of a child is not present as it is for the Hindu child. The custody of a child under the Muslim law is known as “hizanat”, that literally means the care of the infant. Muslim law considers that the child attains majority after he has attained the age of puberty, that is under Muslim law the terms puberty and majority are considered to be the same.

  • The custody of a Muslim child is with the mother until he has attained the age of 7 years for a boy and until she has attained the age of majority or puberty in case of a girl.
  • The custody of a boy after he has attained the age of 7 years and the girl after she has attained majority or puberty is with the father as under Muslim it is the father who is considered to be the natural guardian of the child.
The other relations apart from the parents who can claim the custody of a child are:
  • Nearest paternal grandfather
  • Full brother
  • Consanguine brother
  • Full brother’s son
  • Consanguine brother’s son
  • Full of the father
  • Consanguine of the father
  • Father’s full brother’s son
  • Maternal grandmother
  • Maternal great-grandmother
  • Maternal aunt and great aunt
  • Full sister
  • Consanguine sister
  • Uterine sister
  • Paternal aunt
Persons Who Cannot Get the Custody of a Muslim Child:
  • shall not be given the custody of a Muslim child if that person is not of a sound mind.
  • who doesn’t possess a good moral character shall not be given the custody of a Muslim child.
  • A person who lives in such a place or in such a manner that would not be appropriate for the welfare of the child or is leading to an immoral life shall not be allowed to keep the child under his/her custody .
  • who would not be able to take proper care of the child due to any reason shall not be allowed to take the custody.
  • has ceased to be a Muslim, that is, he has converted into another religion other than Islam shall not be eligible to get it.
  • A woman who has married another man who is not within the prohibited degree of relationship with the child shall not be given the custody.

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 custody once the judgment with respect to separation or divorce has  been passed.

The custody of a child under Parsi law is dealt with the provisions of the Guardians and Wards Act, 1890. Its main aim is the welfare of the child and can put anything to stake to make sure that the welfare of the child is confirmed.

Till the time the order of the court does not specially mentions the conditions discussed above, the parent who is awarded the custody of the child gets the physical custody as well as legal custody. If there is any other kind of custody awarded, it will be mentioned in the order of the court and will be made clear to both the parties.

It can be claimed either by mother or the father. In any of the case where the two of the parents are not in the picture due to operation of some other laws or deceased then in such situation, the maternal or the paternal grandparents or any other relative scan claim custody of the child strictly out of compassion towards the child. In many cases, the court appoints the third person as the guardian of the child.

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

Under Hindu law and as well as Secular law:

the custody of the child under the age of five is usually awarded to the mother. In most of the cases fathers gets the custody of the older boys and mother of the older girls. Moreover, child’s interest is the main criteria and the choice of the child above the age of nine is considered by the court. Wherein a mother if found to ill-treat and neglect the child is not given custody.

In such cases, the mother cannot be discarded as the guardian only because she earns less than the father. Well, in such case the father of the child has to provide for the child’s maintenance. Moreover, the principle of law says that a step- mother has primarily obligation of affection and attention towards her own children and the father would remain out for work all day, and thus, the mother is proved to be a better guardian for the minor child.

There are three factors which constitutes the welfare of the child:-
  • # Ethical upbringing of the child
  • # Safe-keeping of the child
  • # Good education to be imparted
  • # Economic well-being of the guardian
Who Has A Right On Minor Child After Divorce?

Both the parents have an equal right to the custody of a child. However, who gets the custody of a child is still a question which the court has the power to decide upon. Moreover, when it comes to personal laws the statues are conflicting as compared to secular enactment in the form of The Guardian and Ward Act, 1890 which holds the welfare of the child as the paramount importance and thereby the court of competent jurisdiction endeavor to strikes a balance between the two. And as because the custody of the children is given to one parent that doesn’t implies that the other parent cannot be in contact or see the child. The courts in India makes sure that the child gets attention and affection of both the parents. The court gives the other parent visitation rights of which the conditions are determined by the court.

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