The spouses who have cohabited and have a child out of wedlock, and are currently living separately or are involved in any dispute under applicable laws, may face disagreements concerning the custody of their child. Child custody laws in India aim to address and resolve such disputes.
To address this issue, the Applicant/Petitioner must file an application under Section 26 of the Hindu Marriage Act, 1955, before the family court within the respective jurisdiction. The court will then consider the parameters outlined in Section 13 of the Hindu Minority and Guardianship Act, 1956, to make a decision on the custody matter.
Power of the Court- Section 26(Hindu Marriage Act)
According to Section 26 of the Hindu Marriage Act, the court has the authority to issue interim orders and incorporate provisions in the decree that it deems just and proper in relation to child custody and guardianship policies, maintenance, and education of minor children. The court aims to align these provisions with the wishes of the children, wherever possible. Subsequently, after the decree, the court, upon application through a petition, can make ongoing orders and provisions concerning the custody, maintenance, and education of such children. These orders are akin to those that might have been made by the decree or interim orders if the proceeding for obtaining such a decree were still pending. The court is also empowered to revoke, suspend, or modify any previously made orders and provisions as needed.
It can be inferred that the court possesses the authority to grant custody of a Minor Child and subsequently, at any time it deems appropriate, can revoke the same, taking into consideration the wishes of the child and other factors deemed suitable for their welfare.
Time Period: The court is obligated to dispose of the aforementioned application within 60 days from the date of issuance of summons to the Respondent.
Parameters to Be Determined - (Section 13 of Hindu Minority and Guardianship Act)
In accordance with Section 13 of the Hindu Minority and Guardianship Act, 1956, the court has to consider only one paramount parameter: the welfare of the child. Moreover, no person shall be entitled to guardianship if the court is of the opinion that their guardianship will not be for the welfare of the minor.
You Might be Intrested in: Who gets the child’s custody after divorce?
Factors to Be Considered
The Court has established the settled principle of custody laws in India and the grounds under which custody of the minor child should be granted to any of the parties in the petition. However, the foremost consideration is that the party should be deemed fit for the welfare of the child; if not, the court has the power to revoke the same.
Welfare of the Child
The most important and well-settled principle is the paramount consideration of the welfare of minor children in order to grant custody. The Apex Court laid down the same factor in the matter of Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42. The court held that the principles in relation to child custody and guardianship of a minor child are well settled. In determining the question of who should be given custody of a minor child, the paramount consideration is the 'welfare of the child' and not the rights of the parents under a statute for the time being in force.
Custody to the Mother of a Child Below Five Years - Consideration of Section 6-a (Hindu Minority and Guardianship Act)
The Hon’ble Apex Court in the matter of Pushpa Singh v. Inderjit Singh 1990 (supp.) SCC 53 has laid down the settled principle of law that the paramount interest of minor children below 5 years is vested in the mother. The Court further held that the child undoubtedly needs his mother's affection for which there is no adequate substitute. Furthermore, the Hon’ble Apex Court observed that the High Court had not approached the problem in the correct perspective. The High Court was clearly in error in observing that the proviso to Section 6A of the Minority and Guardianship Act, 1956 cannot be attached with importance.
Denial of Custody Due to Negligent Approach and Alcohol Addiction
The Hon’ble Madras High Court has laid down the settled principle of law in the matter of B. Kishore v. Manju alias Manjula (1999) 3 MLJ 269, wherein the court held that if the petitioner is habituated to frequent consumption of alcohol, then the welfare of the child will be at stake. Under such circumstances, the custody of the minor child shall be denied with immediate effect. Furthermore, the petitioner has no earnings and is not bestowing any attention or showering love and affection on his son. The career of the minor son will be affected if he is left in the custody and guardianship of the petitioner. Considering the welfare, education, and maintenance, the custody of the son can be with the respondent, the mother who can act as the natural guardian of the minor son.
Wish of the Child
One of the most important factors which the Hon’ble Apex Court has laid down in the matter of Vikram Vir Vohra v. Shalini Bhalla (2010) 4 SCC 409, is that the wish of a child, under whom they want the court shall also consider the custody, as the same is directly proportional to the welfare of the child. The Apex Court held that the child categorically stated that he wanted to stay with his mother. It appears to us that the child is about 8-10 years of age and is in a very formative and impressionable stage in his life. The child's welfare is of paramount importance in matters relating to child custody, and the court has held that the child's welfare may have primacy even over statutory provisions.
Conclusion
From the above, we can determine that the child custody under Hindu laws in India consider various factors for the determination of custody of the child, but the same is strictly in reference to the paramount consideration of the welfare of the minor child, which includes education, maintenance, and nutritional requirements. Furthermore, the court has the power to revoke custody in case it is found that the attitude of the guardian is not in accordance with regard to the welfare of the child. If you require specific guidance or assistance in matters related to child custody, it is advisable to consult with a child custody lawyer who specializes in family law.
Found this helpful? Click here to read more such blogs on Rest The Case's Knowledge Bank.
references:
restthecase.com/knowledge-bank/child-custody-in-india.
restthecase.com/knowledge-bank/hindu-marriage-act-of-1955.
en.wikipedia.org/wiki/Hindu_Minority_and_Guardianship_Act,_1956.
Author: Shweta Singh
