Child custody is often a major bone of contention between the sparring couple. In case of a minor child, both the parents have an equal right over the child after Divorce. If there is no mutual consent, the family courts decide who gets to keep the child and take his/her major life decisions. Child Custody is filed during or after the divorce proceedings or in the case of judicial separation
Guardians and Wards Act, 1890: This Act is a secular law regulating questions of guardianship and custody for all children within the territory of India, irrespective of their religion.
Child custody is often a major bone of contention between the sparring couple. In case of a minor child, both the parents have an equal right over the child after Divorce. If there is no mutual consent, the family courts decide who gets to keep the child and take his/her major life decisions. Child Custody is filed during or after the divorce proceedings or in the case of judicial separation
Guardians and Wards Act, 1890: This Act is a secular law regulating questions of guardianship and custody for all children within the territory of India, irrespective of their religion.
A Hindu person has been defined to include Jains, Buddhists and Sikhs also and thus, the law made for Hindus is also applicable to persons of these religions. The right of custody of a Hindu child is dealt by the Hindu Minority and Guardianship Act, 1956 together with the Guardians and Wards Act, 1890. The two statutes have to be read harmoniously and the enforcement of one at the cost of the other is not permissible.
⦁ The custody of a child below the age of 5 should be given to the mother as it is believed that the child of such a tender age needs affection and love which can only be provided by the mother.
⦁ It has been a customary practice under Hindu law that the father is the natural guardian and has the ultimate right of custody. This practice has been codified in Section 6 of Hindu Minority and Guardianship Act, 1956 and the custody of children in India above the age of 5 and below the age of 18 years has been the right of the father.
⦁ If the court believes that the parents are unwilling or unable to take care of the child properly or in his best interest, then the court can award the custody of such a child to the close relatives. In a case close relatives are also not able to dispose of the duties of the parents, then the custody can also be given to a capable third person at the discretion of the court.
The gender bias prevalent throughout the Hindu law of custody has to be reviewed in light of the upliftment of women in the present era.
Section 6(a) of the Hindu Minority and Guardianship Act and Section 19(b) of the Guardians and Wards Act (unamend) are clearly discriminatory as they consider father to be the natural guardian over the mother without any rationale.
Section 19(b) of the Guardians and Wards Act was amended to bring the custody rights of the mother and the father at par but there has been no parallel amendment in the Hindu Minority and Guardianship Act.
The issue of custody of a Muslim child is dealt with by the personal law and Guardians and Wards Acts, 1890; and in case of conflict. The rights of Muslim children as certain practices which are fundamental to the custody of a Muslim child are considered by the courts while awarding custody.
⦁ 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.
⦁ In Islamic law, the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty
⦁ The mother’s right of custody continues even if she is divorced but in case of remarriage after ⦁ divorce process in India, 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.
⦁ 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.
Under Section 49 of the Parsi Marriage and Divorce Act, 1936 and Section 41 of the Divorce Act, 1869, courts are authorized to issue interim orders for custody, maintenance and education of minor children in any proceeding under these Acts.
The Act provides that in case of religions that do not have personal laws for child custody, the decisions would be enforced by the courts under the powers allotted by Section 41-43 of the Act.
The court has the power to decide the question of custody of the child either during the proceedings or after the termination of such proceedings. The court has to exercise the power in the best interests of the child and anything that adversely affects the child would have to be considered by the courts before taking a decision on custody.
An order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 is required to be made by the court treating the interest and welfare of the minor to be of paramount importance. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the court
The Guardians and Wards Act, 1890 is not merely physical custody of the minor but due protection of the rights of ward’s health, maintenance and education. In considering the question of welfare of minor, due regard has, of course, to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship.
The parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy-duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration.
In favor of the parent should not insulate the minor from the parental touch and influence of the other parent which is so very important for the healthy growth of the minor and the development of his personality
In the cases of mutual divorce, the parents have to decide amongst themselves regarding the custody of the child. They have to decide who gets the custodial rights and who gets the visitation rights. Parents can also go for joint custody or shared parenting in a mutual divorce. They have to decide regarding the schedule, holidays, visiting hours, etc. The principle of the best interest of the child has to be applied.
During a contested divorce proceeding, the issue concerning child custody becomes a matter of the court to decide. The court takes the best interest of the child into account while deciding the custodial rights. The court will decide on the basis of the circumstances of every case and for the welfare of the child.
The court decide the following aspects while deciding on guardianship:
⦁ The personal law to which the minor is subjected.
⦁ The age, sex, and religion of the minor.
⦁ The character and capacity of the proposed guardian and his nearness of kin to the minor.
⦁ The wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
⦁ If the minor is old enough to form an intelligent preference, the court may consider that preference.
⦁ The court shall not appoint or declare any person to be a guardian against his/her will.
⦁ The child’s comfort, health, material, intellectual, moral, and spiritual welfare.
There are several reasons through which the court denies child custody.
Some of examples are-
⦁ Non-custodial parents not paying child support
⦁ Drug or alcohol abuse
⦁ Child abuse
⦁ Incarceration
⦁ Violent mental illness
⦁ Child’s wishes
According to Sec 9 of Guardians and Wards Act, 1890, the application with respect to the guardianship of a minor person will be filed in the District Court which has authority over the area where the minor is residing.
The criteria for filing for child custody differs from various laws such as:-
⦁ Father
⦁ Mother
⦁ Grandparents both maternal and paternal
⦁ Mother
⦁ Father
⦁ 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