Laws Governing Custody In India

KEY TAKEAWAYS

Indian law considers the kid's welfare to be the most important aspect to consider when selecting who obtains the custody of a minor child.

There are secular and personal laws describing the process of custody of children. 

The secular laws include The Guardian and Ward Act, 1890.

The personal laws differ from religion to religion for Hindu, Muslim, Christian and Parsi. 

INTRODUCTION

The children born from a marriage, when it comes apart or ends in divorce, are the ones who suffer the most. While parents have the right to custody of their children, Indian law considers the welfare of the child to be the most essential factor to consider when deciding who gets custody of a minor.

A child's welfare is determined by the following factors:

The child's ethical upbringing.

The child's safety must be ensured.

Good education must be provided.

The guardian's financial well-being.

Even though both parents have an equal right to custody of their children, the court still has the last say on who gets custody of a child. Furthermore, when it comes to personal laws, sometimes the statutes are contradictory when contrasted to a secular enactment in the form of The Guardian and Ward Act, 1890, which prioritises the child's welfare and so requires the court of competent jurisdiction to strike a balance between the two.

KINDS OF CHILD CUSTODY IN INDIA

There are three forms of custody allowed in Indian jurisdiction:

1. Physical Custody

When a parent is given physical custody, the minor is placed under that parent's guardianship, with the other parent having periodic contact and visitation. The goal of a custody award like this is to give the child a better life in a safe and fulfilling setting while also ensuring that the kid does not miss out on the relationship development with the other parent.

2. Joint Custody

Despite Indian courts' belief that it is best for a minor's welfare, shared custody of a kid does not indicate that both parents must remain together for the child's sake. When both parents share custody of a kid, they will take turns caring for the child while the child is in their custody. The rotation of the child's custody between the parents can last for a few days, a week, or even a month. This is advantageous to the child because on one hand, the child receives both parents' attention, and on the other hand, both the parents can participate in their child's life.

3. Legal Custody

A child's legal custody does not automatically entail that the kid will live with his or her parents who is vested with the legal custody. It basically means that the parent who has legal custody of the child will be able to make all decisions about the child's education, medical treatment, and other concerns. Legal custody is usually granted to both parents simultaneously; however, in some circumstances where the divorce is tumultuous and the parents cannot agree on anything, the court may assign legal custody to one of the parents.

Identification of the type of custody.

The parent who is assigned physical and legal custody of the child has both physical and legal custody of the child unless the court clearly establishes the requirements listed above. Any alternative type of custody awarded by the court will be acknowledged in the judgment and the same would be made clear to both parties.

WHO CAN CLAIM FOR THE CUSTODY OF A CHILD?

Either the mother or the father can claim for the custody of a child. When both parents are removed from the picture due to other laws or the death of one of the parents, the child's maternal or paternal grandparents or other relatives may claim custody simply out of pity for the child. In many cases, the court appoints a third party to serve as the child's guardian.

PRIORITY CLAIM TO THE CUSTODY OF A CHILD

Regardless of the claims of the parties to the custody of children, the Hon'ble Supreme Court and other Indian courts have consistently stated that the main factor in determining custody of a minor is the youngster's welfare.

Under Hindu and Muslim personal law and even secular law, custody of a child under the age of five is usually given to the mother. Fathers typically get custody of older males, whereas mothers typically gain custody of older girls. Furthermore, for a child beyond the age of nine, the court considers the child's choice as well as the child's best interests. When a woman is proven to be abusing and neglecting her child, she is denied custody.

Custody of a minor when the mother is in a worse financial situation than the father, yet the father has remarried and has children from his second marriage:

In such circumstances, the mother's role as guardian cannot be dismissed just because she earns less than the father. So, in this scenario, the child's father is responsible for the child's upkeep. Furthermore, the law states that a stepmother has a primary obligation of providing affection and attention to her own children, whereas the father would be at work all day, demonstrating that the mother is a superior guardian for the minor child.

LEGISLATIONS GOVERNING CHILD CUSTODY UNDER DIFFERENT PERSONAL LAWS

Multiple religions are practiced in India because it is a secular country, and each religion has its own set of child custody laws that control the process by which a parent seeks custody of their child.

1) Custody Under Hindu Law:

Section 26 of the Hindu Marriage Act 1955, Section 38 of the Special Marriage Act 1954, and the Hindu Minority and Guardianship Act 1956 are all Hindu laws that outline the requirements and regulations for obtaining child custody.

a) Hindu Marriage Act 1955, Section 26

It is concerned with the upkeep, care, and education of the child, and it is only when both parents adhere to the Hindu, Jain, Buddhist and Sikh religion that the child's custody is acknowledged. Under this legislation, the court can issue orders, judgments, revisions, and the like at any time in relation to the child's maintenance, and the pending decree must be resolved under 60 days of notice.

b) Special Marriage Act 1954, Section 38

If both parents belong to different religions or have entered into a court marriage, this act validates the child's custody. Under this legislation even, the court can issue orders, judgments, revisions, and the like at any time in relation to the child's maintenance, and the pending decree must be resolved under 60 days of notice.

c) Hindu Minority and Guardianship Act 1956

Only biological parents are allowed to seek custody of their young child if he or she is a Hindu.

2) Custody Under Muslim Law:

Only the mother has the right to seek custody of her child under Muslim law, known as the Right of Hizanat, unless she is proved not guilty of any wrongdoing.

Under Muslim law, a child's custody remains with his or her mother until the child reaches the age of seven for a boy and the age of puberty or majority for a girl.The father, however, is considered the natural guardian in such circumstances even.

3) Custody Under Christian Law

The Christian Church must follow the norms and changes established under Section 41 of the Divorce Act of 1869 when it comes to child custody. In addition, once a separation judgement has been made, Sections 42 and 43 of the same statute allows the court to decide on the child's custody. The child is given to the parent who has demonstrated to be a better guardian for the child, and the claim may be dropped if the court judges that both parents are incapable of providing an appropriate environment for the child.

4) Custody Under Parsi Law

A child's care in Parsi law is governed by The Guardians and Wards Act. Its primary goal is the child's wellbeing, and it will go to any length to ensure that the child's welfare is guaranteed.

Landmark Cases

Roxann Sharma V/S Arun Sharma (Civil Appeal No. 1966 OF 2015): A two-judge bench of the Supreme Court laid down various propositions of law while awarding interim custody of a children suffering in the matrimonial disputes of their parents. The landmark judgement while dealing with interim custody of a child suffering from divorced parents, discussed rights of parents relating to visitation and guardianship. Further, the mother was awarded interim custody and guardianship.

Shaleen Kabra vs. Shiwani Kabra (Civil Appeal No. 4308 OF 2012,(SLP (C) No. 13254 of 2011)): The Court provided the appellant father of the children with the rights of visitation. The Court had even directed the respondent-mother to take all necessary steps to transport the younger son to him to his father's residence.

Beata Agnieszka Sobieraj vs. State of Himachal Pradesh (Criminal Appeal No. 787 of 2016 DOD : 22.08.2016 (SC)): The practice of handing over the custody of a child to an institution while ignoring the claim of a parent, especially the mother of the child, was depreciated in the instant case and the same was held to be unacceptable by the Court.

Bimla and others Vs Anita (2015(3) RCR (Civil) 153 (SC)): It was held that the finest person to raise a minor boy and properly look after his interests is his mother.  Therefore, it was observed that for the establishment of the welfare of children, the custody of the children should be vested with their mothers.

Subarabi v. D. Mohammed (AIR 1988 Kerala 30): It was decided that  though the respondent (father) was in a superior financial position, the petitioner (mother) could not be refused custody of the kid. Furthermore, since the mother was not financially insolvent, the child's custody should not be taken away from her.

Conclusion

A child's custody in India is decided by personal laws, as well as the secular Guardians and Wards Act, 1890. The pivotal consideration while allocating the custody of a child  is the welfare and best interest of the child; then, if required, the personal law conventions and rituals can be set aside. The various personal laws explain the procedure for the custody of a child after the separation of a couple.  In is a trite principle that the custody of the child is usually awarded to the mother if the child is below 5 years of age. The court gives priority to the welfare of the child over the rights of the parents while adjudicating the child's custody cases.