Child custody laws related to divorce in India:
One terrible consequence of a divorce is the long drawn legal battle for child custody. Child custody is best defined as legal guardianship of a minor child. Most of the times, the decision of the child’s custody is based on the welfare and whenever possible, the happiness of the child. Child custody is the subject of legal battles, and it is the responsibility of the court to rule in a just and fair manner, keeping in mind the welfare of the child(s).
In most cases, the parties are able to agree upon joint custody, wherein the child stays with one parent. The parent with physical custody of the child is responsible for the child’s basic needs: food, clothing, shelter, in addition to other requirements such as education, medical needs, etc. The other parent has visitation rights, too. Both parents continue to share legal custody of the child, though. Legal custody means that either parent can make decisions about the welfare of the child, emergency and non-emergency medical treatment, etc. Based on special cases, one- sided custody is granted.
Laws relating to child custody in India:
In the eyes of the law, the welfare of the child is of paramount importance. Most of the times, the welfare of the child is the basis of the custody ruling. All personal laws in India have provisions to deal with child custody-
The Hindu Minority and Guardianship Act of 1956, and The Guardians and Wards Act 1890 deal with child custody under Hindu personal law. The GWA is a secular law that is applicable to all child custody proceedings regardless of caste, religion, etc.
- A child of “tender age” should stay with the mother.
- A grown up male child should live with the father.
- A grown up female child should ideally live with the mother.
These are not hard and fast rules, and there are some exceptions according to circumstances.
The Hindu Minority and Guardianship Act of 1956 state that a child younger than five years of age should ideally be in the mother’s custody. However, no such provision is mentioned in Hindu personal law.
Under Muslim laws, the mother always has the first right to child custody. This right can be invoked against the father in the custody proceedings too. However, the mother has to be of the perfectly sound mind and not be guilty of any misconduct.
In the case of a son, the mother has the first right of child custody. There are different customs for different sects of Islam, with respect to age of the child. Some sects believe that the mother’s rights are valid only until the time the son is 7 years old, while other sects go on till the age of puberty.
In the case of a daughter too, there are different figures in various sects. Some state that a mother’s right to her daughter’s custody is till she attains puberty, other sects state that the right continues till the girl is married.
The father is given custody after the mother’s right of child custody expires. The father is also given custody if there are no female members to take care of the children.
There are no provisions in Christian Law relating as such to child custody. However, the provisions of Indian Divorce Act, 1869 apply to child custody. The law states that the court has the right to determine the custody rights, keeping the child’s welfare in view. The court can also place the child under its own protection.
Custody is decided upon under the provisions of the Guardians and Wards Act, 1890. The child is not automatically placed in the custody of a particular parent. Custody depends on various factors. By extension, the welfare of the child is of paramount importance.