The Spouse who have cohabited a child out of their wedlock, and is living separately from each other, or are involved in any dispute under any law, in such cases, a dispute that arises between them is with regards to the custody of a child. Child Custody laws in India intend to mitigate disputes under these matters. To resolve this issue, the Applicant/Petitioner has to file the Application under Section 26 of Hindu Marriage Act,1955, before the family court of respective jurisdiction wherein, the court will consider the parameters prescribed under Section 13 of Hindu Minority and Guardianship Act, 1956.
POWER OF THE COURT- SECTION 26(HINDU MARRIAGE ACT)
As per Section 26 of the Hindu Marriage Act, the court can pass interim orders and make such provisions in the decree as it may deem just and proper with respect to the child custody and guardianship policy, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions concerning the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending. The court may also revoke, suspend, or vary any such orders and provisions previously made from time to time.
It can be derived that the court has the power to grant custody of a Minor Child and thereafter, at any time when the court deems fit, can revoke the same, subject to what the child wishes and other factors which are deemed fit for their welfare.
Time Period: The Court has to dispose of the aforesaid application within 60 days from the date of issuance of summons to the Respondent.
PARAMETERS TO BE DETERMINED- SECTION 13-(HINDU MINORITY AND GUARDIANSHIP ACT)
In accordance with Section 13 of the Hindu Minority and Guardianship Act, 1956, the Court has to consider one and only parameter that is the paramount consideration of the welfare of a child; moreover, No person shall be entitled to the guardianship if the court is of the opinion that their guardianship will not be for the welfare of the minor.
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CASE LAW- FACTORS TO BE CONSIDERED
The Court has laid down the settled principle of Custody laws in India and the grounds under which the custody of the minor child should be granted to any of the parties in the Petition, but the foremost consideration is that the party should be deemed fit for the welfare of the child if not so, the court has the power to revoke the same.
WELFARE OF CHILD
The most important and the 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 the child custody and guardianship of a minor child are well settled. In determining the question as to 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-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 Petitioner is habituated to frequent consumption of alcohol then in such cases, the welfare of the child will be at stake, hence, under such circumstances, the custody of the minor child shall be denied with immediate effect. Furthermore, the petitioner has no earning 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.
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WISH OF 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, wherein the Apex Court held that wish of a child under who 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 a primacy even over statutory provisions.
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.
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Author: Shweta Singh