Table of Contents
Introduction to Custody
One of the key issues that come up in every separation case is the one related to custody of the child. The issue of child custody comes into question only after the completion of divorce or judicial separation, and it is one of the most sensitive issues on which a court has to decide.
Custody is the right given by a court to a parent to look after a child less than 18 years of age. The parent who gets custody of the child looks after his financial, emotional, physical, social and mental well-being. The decision of the court regarding the custody of the child is entirely based upon what is best for the child.
Factors Contributing towards Welfare of Child
The welfare of a child is an umbrella term, and several factors together constitute it. While deciding the custody of the child, the court takes several factors into account and tries to establish the best possible scenario for the child. The main factors which contribute towards the welfare of the child and are taken into account by the court are –
- The ethical upbringing of the child
- Self-keeping of the child
- Quality education to be imparted
- The economic wellbeing of the guardian
Status of Minor Child after Divorce
A child belongs equally to both parents. The provisions related to right divorced parents over minor children are mentioned in the Guardian and Ward Act which was enacted in the year 1890. However, the provisions mentioned in the act are somewhat in contrast with the personal laws related to custody. The ultimate power to decide custody rights vests in the hands of the family court, and it tries to strike a balance between the two.
The parent who gets custody of the child gets vested with all the rights. Even the other parent has the right to access and the right to stay in contact with the child. This right of the other parent also helps in keeping check that the parent having custody rights is taking proper care of the child. This also helps in ensuring that a child is not deprived of any sort of love and gets proper care from both parents in their early years.
Types of Child Custody in India
Types of child custody in India are mentioned below –
Physical Custody
In this kind of custody, a minor child stays under the guardianship of the parent who gets the custody rights. In contrast, the other parent has visiting and interaction rights as per the conditions specified by the court.
Joint Custody
Joint custody is when both the parents get equal custodial rights, and the child remains in the custody of both parents rotationally. For example, the court can decide that the child will stay with the mother for two months and then the with father for two months, and it keeps on rotating. This period can be days, weeks or months, and the court decides by considering all the circumstances.
In joint custody, a child does not get deprived of either parent and gets to have a healthy relationship with both parents. It also gives equal opportunity to both the parents to be part of the child’s life. An important point to note here is that joint custody is different from the right to access to child.
Legal Custody
In legal custody, all the decisions related to the welfare of the child, such as which school will he join, which hospital will he go to etc., are decided by the parent having legal custody. Generally, legal custody is given to both parents so that they can equally contribute to the welfare of the child. However, in cases where the divorce is messy or it is apprehended that these parents will never be able to agree on a mutual decision, the legal custody of the child is granted to one of the parents as the court may deem fit.
Third-Party Custody
There are cases where the court find that neither of the biological parents should be granted custodial rights. In such cases, where the court feels that both of the parents are incapable of raising a child, it grants custodial rights to some third person related to either of the parents who act as guardian of that child.
Who Can Claim Custody Rights?
Generally, custody right is demanded by either father or mother or both after the divorce or judicial separation. However, in third-party custody cases, where both the parents are incapable of raising a child, relatives such as maternal or paternal grandparents can also claim custody right over a minor child. In these cases, such a relative who gets custody rights acts as guardian of the child and ensures the child’s proper safety and well-being.
Custody Laws in India
Issues relating to custody of children fall under the ambit of family law. India is known for its cultural and religious diversity, and hence there is a huge contrast between personal laws and central legislations. Custody under different personal laws are discussed below –
Custody under Hindu Law
The Hindu Minority and Guardianship Act, 1956, the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954deal with provisions relating to custodial rights of a minor after separation of the parents.
a) Section 26 of Hindu Marriage Act, 1955
It deals with the maintenance, education and caring of a child. The custody of a child gets validated under this section only when both the parents follow the Hindu religion. Under this provision, the court can pass orders, judgements, amendments, etc., at any point in time in respect to the maintenance of the child and dispose of the pending decree within sixty days from the date of service of notice.
b) Section 38 of Special Marriage Act, 1954
This act comes into the picture when both parents belong to different religions or have undertaken a court marriage. Other than this, the rest of the provision is the same as that under the Hindu Marriage act.
c) Hindu Minority and Guardianship Act, 1956
This act allows only biological parents to seek custody of their minor child provided that he/she is a Hindu.
Custody under Muslim Law
Under Muslim law, custody of a child vests with the mother till the child attains seven years of age unless a mother is found guilty of some misconduct. After seven years of age, a father is considered the natural guardian.
Custody under Parsi Law
The custody of a child under Parsi law is dealt with by the provisions of the Guardians and Wards Act, 1890. Under this, the first and foremost aim is the welfare of the child.
Custody under Christian Law
The custodial rights of a child after the separation of parents in Christian law is dealt with under section 41 of the Divorce Act, 1869. The parents have to prove themselves capable of taking the responsibility of rearing the child so that the child’s well-being is ensured.
Determination of Priority in Claim of Custody
In the case of SheoliHati v. Somnath Das[1], it was held that while deciding custody or other issues pertaining to a child, “welfare of the child” is of paramount consideration. It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the court.
In the case of Vivek Singh v. Romani Singh[2], it was held that the welfare principle serves two purposes, i.e. ensures the best interest of the child and ensures public interest that stands served with optimal growth of children.
WHO WILL GET THE CUSTODY OF A MINOR IF THE MOTHER IS IN A WEAKER FINANCIAL CONDITION AS COMPARED TO THE FATHER, BUT THE FATHER HAS REMARRIED AND HAS KIDS?
A mother cannot be discarded of her custodial rights just based on her financial conditions. If a mother earns less than the father and is unable to earn enough for the proper well being of a child, then in such cases, the father has to provide maintenance for the child.
It has been clearly established that a stepmother has a primary obligation towards her own children, and she may not be the best person to take care of the child in the absence of a father. So, the child’s biological mother gets all the custody rights in such cases, and the father provides maintenance.
Conclusion
The separation of parents is already a traumatizing event for a child. In such circumstances, an ugly fight for custody can have an even worse impact on the child. The main motive while deciding custody rights is the child’s welfare, and it remains identical in all the cases. It does not matter which personal laws come into the picture, but the child’s interest is the foremost concern. It is important for both the parents to have a sensitive approach in issues such as custody rights to avoid any additional hardships for the child because it is true that scars of childhood always stay.
[1](2019) 7 SCC 490
[2](2017) 3 SCC 231
This article is authored by Ayesha Gupta student at Guru Gobind Singh Indraprastha University.
