Child Custody
laws in India
Child care is one of the most difficult parts of separation. It has a direct impact on both parents, their children and the well-being of that child. This is why it is important to understand how child custody works in India. This is because it works compared to the western countries where most divorces are settled.
Overview
Child custody issues arise when parents separate. Child custody refers to the legal relationship between a parent or guardian and a child in their care. It involves legal custody, which grants the authority to make decisions for the child, and physical custody, which pertains to where the child resides. Typically, married parents share joint legal and physical custody of their children. Child custody decisions are commonly made during divorce, annulment, separation, or adoption proceedings. In most jurisdictions, custody is determined based on the best interests of the child, without compromising their future.
What Is Child Custody in India?
In India, both the mother and father have legal rights to their child, which means that both parents are entitled to raise, care for, and have visitations with the child. Courts typically do not decide custody based on which parent is better suited to care for the child, as both parents are considered important during the child’s growth. In most cases, custody may be shared between both parents. However, societal perceptions often influence decisions, with some considering women to be the more nurturing parent. As a result, mothers may sometimes be granted primary custody, with the assumption that they are better suited to care for the child, while fathers are expected to provide financially.
How Child Custody Works in India ?
In India, child custody decisions are challenging, as courts must consider the welfare of the child while also adhering to state-specific rules and regulations. Many people prefer joint custody over sole custody, as it allows both parents to remain involved in their child’s life. However, if parents cannot agree on whether custody should be joint or sole, the court will make the final decision. In such cases, the court typically consults both parents to understand their preferences before determining who will have full custody of the child.
Important factors consider by court while taking decision
- Ethical upbringing of the child
- Providing the child with a good education
- Ensuring the safety of the child
- Offering economic and financial support to the child
Types of Child Custody in India
Types of Child Custody in India:
-
- Sole Custody:
In this arrangement, the child is under the guardianship of one parent, while the other parent is given visitation rights periodically. This is the most common form of custody, ensuring the child receives all the family benefits, love, and the best upbringing possible. The environment around the child should be enriching, fulfilling, and not deprive the child of the affection of both parents. - Special Guardianship:
Special guardianship is when a non-biological guardian has legal custody of a child. This can occur when both parents agree to it. The main difference between legal and physical custody is that legal custody involves the rights and responsibilities for raising the child, while physical custody pertains to where the child lives and how much time the child spends with each parent. For instance, if a court grants legal guardianship to the father, he will have full responsibility for the child’s life unless he stops providing the necessary care, at which point the guardianship terminates. - Joint Custody/Partial Custody/Physical Custody:
In joint custody, both physical and legal custody are shared. The child spends time with each parent, and they cooperatively make decisions regarding the child’s welfare and upbringing, similar to when they were married. For example, parents may arrange for the child to live with each parent for one month at a time, and together, they decide on all major issues regarding the child’s well-being and upbringing. - Guardianship of Minor Children:
Under Hindu law, the Hindu Minority and Guardianship Act, 1956 governs the guardianship of minor children. According to this Act:- A minor is anyone under the age of 18.
- A guardian is a person responsible for both the care of the child and the child’s property.
Types of guardianship include:
- Natural Guardian: The biological parents.
- Testamentary Guardian: A guardian appointed by the parents through a will.
- Guardian Appointed by the Court: A guardian appointed by the court when the natural guardians are unable to care for the child.
- Sole Custody:
Documents required
| Hindu | Muslim | Christian | parsi | |
|---|---|---|---|---|
| Governing laws | Ruled by the Hindu Minority and Guardianship Act, Guardians and Wards Act, 1890. |
Ruled by the Hindu Minority and Guardianship Act, Guardians and Wards Act, 1890. |
Ruled by the Guardians and Wards Act, 1890. |
Ruled by the Guardians and Wards Act, 1890 included with the Indian Divorce Act, 1869. |
| Best interest of the child |
The interest of the child is considered first. |
The interest of the child is considered first. |
The fundamental principle for granting custody is the best for the child. |
The fundamental principle for granting custody is the best forthe child. |
| Child’s Consent | The child can decide the granting of custody |
The child’s opinion is always considered. |
The child’s opinion is given a considerable value if he/she is able to understand the situation. |
The child’s opinion is given a considerable value if he/she is able to understand the situation. |
| Distinction between rights of father and mother |
Father was treated as the natural guardian. |
Father was treated as the natural guardian. |
No such distinction. |
No such distinction. |
Note:Procedure to Obtain Child Custody Under Indian Law:A child custody case (petition) must be filed by any spouse seeking custody. Due to the civil nature of these petitions, they often take longer to resolve. It is advisable to attach an application for interim or temporary custody and visitation rights for the non-custodial parent.
Visitation Rights and Interim Custody: Interim custody allows the non-custodial parent to have custody during the pendency of the suit.
Section 8 of the Guardians and Wards Act, 1890: This section lists the persons entitled to apply for a guardianship order. Section 9 empowers the Court with jurisdiction to entertain guardianship applications.Procedure under Hindu Marriage Act, 1955:Under Section 26 of the Hindu Marriage Act, courts are authorized to pass interim orders regarding the custody, maintenance, and education of minor children during any proceeding under the Act, in accordance with their wishes. The section also allows courts to revoke, suspend, or vary previously passed interim orders.Procedure under Article 32 and 226 of the Constitution of India:In extraordinary situations, a writ petition under Article 32 can be filed in the Supreme Court, or under Article 226 in High Courts, using the Writ of Habeas Corpus to obtain child custody. These petitions are not full-fledged child custody petitions but have limited jurisdiction. However, the Supreme Court and High Courts possess extraordinary powers to determine such issues.Format of Petition for Custody:Provide marriage details, including the date, place, and proof such as a marriage certificate, wedding card, or photos. Attach copies with the petition.
Include details of the child’s birth, along with the birth certificate.
State the current residence of the child with the respondent.
Explain your ability to care for the child, focusing on your role in their growth and development. Avoid emphasizing financial earnings as the primary argument for custody, as the court may interpret this as a basis for assigning maintenance rather than custody.
Discuss your commitment to the child’s education and suggest taking responsibility for school fees. Propose opening a joint bank account for the child’s welfare, with both parents as guardians, to ensure that funds are used solely for the child’s needs. This strategy can help monitor financial accountability and potentially support a case for custody if misuse of funds is identified.
Conclusion:
If a Hindu male dies without a will and has no class 1 or class 2 heirs, succession passes to cognates (relatives by blood or adoption, but not wholly through males). Examples include the mother’s brother’s son or brother’s daughter’s son.
Professional Support for Your Child Custody Dispute:
Facing a long legal battle over child custody can be challenging. Experienced lawyers can significantly impact the outcome by representing and advising you. An experienced child custody l
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