Child Custody in India

The debacle of divorce and its never-ending implications has a long-lasting impact on the lives of the party involved. Not only it changes the life of the spouses but those of their children too. Child custody and the laws that surround it are no trivial matter. The nuances of a custody battle are vast and to have the odds in your favor requires a sound representation and understanding.  

Types of child custody in India

Child custody can be defined as a relationship of guardianship between a parent and their child or between the child or any other person, as the court may decide and grant. Child custody can be of the following types

Physical Custody

In the case of physical custody, the minor is under the guardianship of one parent and receives periodic contact and visitation from the other parent. This custody award aims to provide a child with a better life in a safe and fulfilling environment and also to ensure that the child will not be deprived of the affection of the other parent during their formative years.

Joint Custody

Having joint custody means that both parents share decision-making rights for their children. In some cases, this can be a viable option if your partner and you have different interests or are uncertain about whether to raise your child in India or send them back home.

Legal Custody

A child's legal custody does not necessarily mean the child has to live with his or her parents. In essence, this means that the parents are granted legal custody over their children and can make all decisions concerning their education, medical treatment, etc. Legal custody most of the time is granted to both parents together, but in certain cases where the divorce is messy and parents don't agree, then in these cases, the court grants legal custody to any of the parents.

Third-Party Custody

When both biological parents are deemed unfit to be assigned guardianship rights, the rights are bestowed on a third party by the concerned adjudicators. 

Sole Custody

In the case of sole custody, the child's entire custody right resides with one biological parent. A parent who has a history of abusive behavior or is incapable of being beneficial to the child is completely excluded from any contact with the child and has no right to influence the child.

Laws Governing Child Custody

The law of India is diverse because it is made up of people from many different ethnic groups. There are situations in which the central legislation is at odds with the personal legislation. Below is the list of the child custody laws under different religions:

Child Custody under Hindu Law

a) Section 26 of the Hindu Marriage Act 1955

Child custody is only valid when both parents follow Hinduism, which is a religion that focuses on the maintenance, care, and education of children. Under this act, the court can pass orders, judgments, etc. The court may order the maintenance of the child at any time and dispose of the pending decree within 60 days of receiving the notice.

b) Section 38 of the Special Marriage Act 1954

The act validates the custody of the child when both parents are of different religions or are married in court. Following this act, the court can pass orders, judgments, amendments, etc. at any time regarding the maintenance of a child and dispose of the pending decree within 60 days of service.

c) Hindu Minority and Guardianship Act 1956

Only biological parents are allowed to seek custody of their minor children if they are Hindus.

You might be Intrested in: Things You Need To Know About Child Custody Under Hindu Law

Child Custody under Muslim law (Hizanat):

• As per Muslim law, only the mother is entitled to seek custody of her child until she is found not guilty of any misconduct.
• According to Muslim law, a child's custody is with the mother until the child reaches the age of 7 for boys and puberty or majority for girls.
• The child remains in the custody of the father until the boy reaches the age of 7 years old and the girl reaches puberty since the father is considered the child's natural guardian.

Child custody under Christian law

The Indian Divorce Act of 1869 governs child custody rights since Christianity is silent on the subject. Christian children are entitled to custody, education, and maintenance under section 41 of this Act. The Act generally adheres to joint physical custody.

Child Custody under Parsi Law

Guardians and Wards Act, of 1890, manages custody rights. Multiple legal provisions are in place to ensure the well-being of the child under the Act.

Importance of child custody for Welfare of a Child:

Child custody is not just daunting for the parent but also for the child who is being fought over. Child custody laws are created to keep a child’s welfare at the center of the laws. The parameters of the laws are designed to provide the stability and security a child needs, as well as ensure that the child has access to both parents and is able to form healthy relationships with both. In addition, child custody can help to ensure that the child's best interests are taken into account when decisions are made regarding his or her care and upbringing.

How does the court decide child custody in India? 

A family court's decision to award custodial rights to a parent is based on securing the best possible future for the child. Four distinct parameters determine welfare; they are: 

• The child in question should be raised ethically.
• Safeguarding the child's safety.
• Providing quality education.
• The guardian in whose hands custodian rights are vested must be financially sound.

Besides the four parameters, the courts also consider the following:

The relationship between Children and Each Parent:

First, the court will examine the relationship between the children and their parents. When the court realizes that the young children are more feasible with one parent and have a strong relationship with that parent, the court will award full custody to that parent. Courts will consider awarding the other parent visitation rather than custody, and that parent will also have to pay child support. In this way, the court will give priority to the relationship between the child and both parents.

Mental and Physical Health of Children and Parents:

The court will make a different decision if one parent is physically disabled and cannot care for the young child. Whether to grant partial custody to the disabled parent, visitation, or child support will be considered by the court. When one parent is mentally disabled, the court will give full custody to the other parent while considering child support. 

Adjustment: 

A court will determine how much adjustment the child needs to make in their life following the divorce of their parents, with whom they feel comfortable living, and what they want after their parents' divorce. Neglect If the court notices neglect from either parent, it will reconsider child custody. If any claims from the child or a parent are true, the court will decide how custody will be arranged.

Conclusion

After getting legal Custody, the guardian must take proper care of the child and help him grow in a safe and amiable surroundings.

Nowadays, courts have inclined their more significant part of the interest in granting joint Custody to the parents for the child's benefit and secure future. It should be handled with the utmost care and be adjudicated very delicately and sensitively because the child's entire childhood, adulthood, and life depend upon this decision. The welfare of the children should be given utmost priority while deciding the case.

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FAQs

Can grandparent claims child custody?

Recently, the Apex Court said that among the relatives seeking custody of a minor child after the demise of his parents, paternal grandparents should be preferred as they can take better care of him than other relatives.

What are the factors the court considers when making child custody in India?

• The child in question should be raised ethically.
• Safeguarding the child's safety. Providing quality education.
• The guardian in whose hands custodian rights are vested must be financially sound.

How does one know what type of custody has been granted?

The concerned court passes the order while specifying the type of custody given to the partners. 

What is the latest judgment on child custody to the father?

A significant judgment by the Punjab and Haryana high court held that the father can have custody of a child regardless of his age, even if he is less than five years old.

At what age can a child decide custody in India?

A child can choose custody upon attaining a particular age i.e. 9 years as per the Guardians and Wards Act 1890 (GAWA).

Who gets custody of the child after the divorce?

Respective circumstances of the case determine who gets the custody rights of the child. Court grants custody to either of the parents that favor the child's best interest. Know who get child custody after divorce in detail.

About The Author:

Adv. Keshav Damani is an experienced advocate practicing at the High Court of Gujarat, with over 15 years of expertise in handling cases related to the 138 N.I. Act, criminal law, consumer disputes, and writs litigations and mediations. Based in Ahmedabad, Keshav has demonstrated professional excellence in various legal domains, including civil and criminal litigation, company law, and consumer disputes. He has a strong track record in legal examination, drafting, dispute resolution, and mediation. Keshav began his independent practice in 2008, having previously worked with prominent Senior Designated Counsel Mr. Ashutosh Kumbhakoni. He has also served as Panel Counsel for the Central Board of Excise, Customs, and Service Law, and for the Union of India. He holds a B.S.L., L.L.B. from N.B.T. Law College, Nashik, and is licensed with the Bar Council of Maharashtra