It is for the betterment for your child. Your words, your feelings; in the legal format. Maintain the privacy and file it online. Learn the intricacies with the Frequently Asked Questions. Proceed for child custody application, now.
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.
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.
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.
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.
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.
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.
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.
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.
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.