I am Supriya Gill, a Lawyer and this article is a detailed explanation of Child custody laws in India, who get custody of the child after divorce, type of custody, etc.
Whenever the matter comes before the Court that custody of the child will be given to the father or mother after the divorce, the first point the Court takes into account in determining this is the Welfare of the child. Who can take better care of the child is the important criterion. So, the first paramount consideration is the welfare of the child. The law governing such determination is the Guardian and Wards Act, 1890.
As per Section 6 of the Hindu Minority and Guardianship Act, 1956, the natural guardian of a minor child is the Father which means the responsibility to maintain etc. is of Father. Still, if the child is below the age of 5 years, the mother of the child will get custody.
If a child is above the age of 9 years, Court also takes into consideration the will of the child with whom the child wants to live.
What is Child Custody?
Child custody means the legal and physical care, control and supervision of a child by a parent or guardian.
Child custody decisions are important because they determine the living arrangements and care of a child, and have a significant impact on the child’s future.
The type of custody granted, either sole or joint, and the allocation of decision-making responsibilities, will affect the child’s relationship with each parent, their education, health, and overall well-being.
Child custody decisions ensure that the child’s best interests are met and that their physical, emotional, and psychological needs are met in the most appropriate manner possible.
The child custody decision also determines the level of involvement of each parent in the child’s life, and the distribution of responsibilities between them.
In India, the welfare and well-being of the child is prioritized when making custody decisions. The Indian judiciary has emphasized that the best interests of the child should be the paramount consideration in all child custody cases.
How much time does the Court take to conclude a child custody case?
In case of the application for child custody or visitation and access rights of the opposite party, Court needs to decide this within 60 days of filing the application. These sixty days will be calculated from the day of service of notice to the respondent.
India’s laws regarding child custody in case of divorce
In India, child custody is governed by the Hindu Minority and Guardianship Act of 1956 and the Guardians and Wards Act of 1890.
These laws lay down the procedures and criteria for determining child custody in case of divorce and prioritize the best interests of the child in all custody decisions. The court may award joint custody, sole custody, or shared parenting, depending on the specific circumstances of each case.
The Hindu Minority and Guardianship Act of 1956
The Hindu Minority and Guardianship Act of 1956 governs the appointment of guardians and their powers and duties with concerning Hindu minors.
It lays down the provisions related to the appointment of guardians of minor children in case of divorce. According to the Act, the natural guardian of a Hindu male child is the father The act states that the father is the natural guardian of a Hindu male child or unmarried girl.
In divorce cases, the court may award the custody of the child to either parent, keeping in mind the best interests of the child.
The act also provides for the appointment of a guardian ad litem, who is a representative appointed by the court to act on behalf of the minor during custody proceedings.
Guardians and Wards Act of 1890
The Guardians and Wards Act of 1890 governs the appointment of guardians for minor children. The act provides for the appointment of guardians for the person, as well as the property, of a minor. The Guardians and Wards Act of 1890 applies to all minor children, regardless of religion, in India.
Different Personal Laws governing Child Custody in India
In India, there is no Uniform codified law, therefore child custody is governed by Personal laws.
In Hindus, if the child is below 5 years of age, custody is given to the mother. In Muslims, if a male child is below the age of 7 years, generally custody is given to the mother and in the case of a minor Muslim female child, custody is given to the mother. These are general rules, but if the Court considers the welfare of the child, the Court can give child custody to another party.
1. The Hindu Marriage Act, 1955
Under Hindu law, the application of Section 26 of the Hindu Marriage Act, 1955 for interim orders determines child custody and maintenance of the child and educational expenses.
2. Special Marriage Act, 1954
Section 38 of the Special Marriage Act, 1954 deals with the custody, maintenance and education of the children.
3. Indian Divorce Act, 1869
Section 41 of the Indian Divorce Act, 1869 will apply for interim orders for child custody, visiting and access rights of the opposite party, and maintenance and educational expenses of the child. And this application, from the date of service of notice to the respondent, is determined under sixty days.
You can read the detailed provision here.
Christians are also governed under this Act for custodial matters under sections 41, 42 and 43 of the Indian Divorce Act, 1869.
4. Parsi Marriage and Divorce Act, 1936
Section 49 of the Parsi Marriage and Divorce Act, 1936 deals with the provision relating to custody of the children.
5. Protection of Women from domestic violence act, 2005
If there is a case of domestic violence between the husband and wife and the question of child custody arises. Section 21 of the Protection of Women from domestic violence act, 2005 lays down the provision about custody.
Factors considered by the court while determining child custody in India
The court considers several factors while determining child custody in case of divorce to ensure that the best interests of the child are served. These factors include:
- The court considers the child’s emotional, physical, and educational needs, and assesses which parent is best equipped to meet these needs.
- The court evaluates the emotional and financial stability of both parents to determine which parent would provide a stable and secure environment for the child.
- The court considers the bond between the child and each parent, and whether the child has any preferences regarding custody.
- If either parent has a history of abuse or neglect, the court may consider this in its decision-making.
- The court considers the ability of both parents to co-parent and works together for the best interests of the child.
Types of custody
1. Joint Custody
In the case of Joint Custody, both parents have legal and physical custody of the child and share the decision-making responsibilities.
2. Sole Custody
In Sole Custody, only one parent has legal and physical custody of the child and has the sole decision-making authority.
3. Shared Parenting
In Shared Parenting, both parents have the physical custody of the child and share the decision-making responsibilities. This type of custody is granted when both parents agree to work together for the child’s best interest.
Conclusion
Child custody is determined based on the best interests of the child in India. The courts consider various factors such as the financial and emotional stability of each parent, the relationship of the child with each parent, the living conditions, and the ability of each parent to provide for the child’s physical, emotional, and educational needs.
Under Hindu Law, the father is the natural guardian of the child, but this is not always the case.
The final decision on child custody is taken by the court after considering all the relevant factors and the child’s welfare is given paramount importance.
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