Child custody
Mustafa Bhat
(Querist) 23 October 2013
This query is : Resolved
Respected Experts.
At what age of the Child father can claim the Custody of his Child from his divorced wife if the child is Female & if the Child is Male & When both the parties are Muslim.
ABDUL RAZIQUE
(Expert) 23 October 2013
Dear Victim,
Custody matter is The laws governing child custody in India are the Guardians and Wards Act 1890.
The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute’ . As if to dispel any doubts on the matter the Court held (vide supra) ‘no statute on the subject can ignore, eschew or obliterate the vital factor of the welfare of the minor’. In a landmark judgement the SC driving home the equality of the mother to fulfil the role of a guardian held that ‘gender equality is one of the basic principles of our Constitution, and, therefore, the father by reason of a dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category ‘.
To the lay person, this was akin to the highest Court in the country saying gender was not a consideration in deciding matters of child custody and guardianship. It was not to be, the Karnataka High Court held several years later that ‘it is the most natural thing for any child to grow up in the company of one’s mother’ and ‘a child gets the best protection and education only through the mother even in nature’ Again it was the sagacity of the Supreme Court hearing an appeal in the same matter which held that ‘we make it clear that we do not subscribe to the general observations and comments made by the High Court in favour of mother as parent to be always preferable to the father to retain custody of the child’ . Despite the over- arching observations of the Supreme Court in the matter of child custody it is thus, often, the subjectivity of an individual judge which decides a case of child custody.
There is no age bar for custody of child.
Mustafa Bhat
(Querist) 23 October 2013
I asking age of child in case both parents are qualified.
ABDUL RAZIQUE
(Expert) 24 October 2013
Technically, the child cannot choose which parent they want to live with. Rather, the court considers the child's wishes and preferences about the parents. What the child wants is only one out of several facts a court considers. The older the child is, the more weight that is given to his or her opinion.
Most people, of course, are looking for exact numbers as to ages. There are no such rules!
However, from what I've seen, the wishes of children fourteen and over are normally decisive in child custody disputes. This is primarly because at that age, if a child does not like things, he or she can simply hop on a bus and go to the other parent's home.
As well, the court normally considers the wishes of children between the ages of eight and thirteen. The wishes of children younger than eight normally have a minimal impact on custody.
but recently a 5 years child go to custody of choice.
Raj Kumar Makkad
(Expert) 24 October 2013
Well advised by experts hence no more to add.
