Forms & Child Custody Laws Available in India

The custody of a child following the parent's divorce is a contentious issue. Usually, movies & books emphasize the extent of emotional turmoil that a child must endure witnessing their parents' divorce. Child custody problem comes after the divorce or legal separation is finalized and is one of the most crucial matters on which the court must rule. 

Child custody refers to the legal right granted to a parent to care for the child (if the child is less than 18 years of age). The parent with custody rights is responsible for the child's economic stability and care regarding a healthy lifestyle, wellness, and psychological, physiological, and mental growth. Another parent has the only right to see and interact with the child. Regarding possession, the family courts decide based on what would be best for the child in concern.

What Factors Led to a Child's Wellbeing?

When the family courts grant custody rights to one of the parents, the judgment is made to ensure the best possible future for the child in the discussion. The subject of well-being is determined by four distinct factors, which are as follows: · 

  •  The proper ethical upbringing of the child
  • Child safety guarantee. 
  • Providing high-quality education. 
  • The guardian in whose hands the custodial rights are conferred must be financially secure.

Who Claim After Divorce Child Custody?

A child's custody is shared equally by both parents. But, who receives custody of a child continues to be a subject for which the court has jurisdiction. And just because one parent has custody of the children doesn't mean the other parent can't contact or even see the child. 

 After the divorce or legal separation, the mother or the father can seek possession of the child. But, if both parents are ruled unsuitable for possession or both are deceased, the grandparents from either the maternal or paternal side, or another relative of the divided family, might take custody of the child. In most circumstances, the court appoints a third party as a guardian to safeguard the child's welfare.

Child Custody in Indian Law

The rules and provisions for child custody in India are determined by the child's and parents' religions. In India, child custody is controlled by the personal law of the child, as well as the guardians and wards statutes of 1890. 

 According to the Guardians and Wards Acts, it is the practice of monitoring, caring for, and keeping a child below the age of 18 by the custodial parent within specific criteria such as financial stability, comprehension and relationship with the child, and so on. The courts have conferred these privileges.

Forms of Child Custody Available In India

In India, a court of competent jurisdiction orders custody of children in one of four ways:

1. Physical Custody of the Child

When physical custody is granted to a parent, the child will remain in that parent's care, with intermittent contact & visits with the other parent. The goal of such a custody decision is to provide the child with a better quality of life in a secure and happy atmosphere while also ensuring that the child does not miss out on receiving the other parent's love during their early years.

2. Joint Custody of the Child

Joint custody of a child does not entail that both parents should remain together for the child's sake, regardless of the notion that Indian courts consider that it is better for a child's wellbeing. Joint custody indicates that both parents will take turns looking for the child while the child is in their possession. The rotations of the child among the parents can be a few days, a week, or even a month. It helps the child since the youngster receives the love of both parents while also allowing the parents to be involved in their child's life.

3. Custody by a third party

As the term implies, neither of the birth parents has custodial rights. This happens because the judge believes that both parents are incompetent in rearing a child and that giving them parental rights would indeed be detrimental to the child. A third party connected to the parents is appointed as the child's caretaker.

4. Sole custody

In sole custody, one biological parent has full custody rights over the child. Because of a prior record of abusive behavior or, because they are incompetent in being favorable to the child in a certain way, the other parent is entirely excluded and denied any rights over the child.

How Do You Determine The Form Of Custody Given?

Until the court decision specifically includes the requirements stated above, the parent who is given custody of the child has both physical and juridical possession. If another type of custody is granted, it will be specified in the court's order and conveyed to both parties.

A concise overview of Child Custody laws in India

As individuals from numerous communities populate India, several personal laws exist to address societal challenges. In some cases, the central legislations directly conflict with personal rules. The following are the many national laws governing child custody following parental divorce:

1. Child custody privileges under Hindu law

  • The Guardian and Wards Act, 1890, interpreted Hindu Minority & Guardianship Act, 1956, governs the possession of a Hindu child under Hindu law. 
  • According to the Hindu Minority and Guardianship Act, the mother is usually granted possession of a minor child below the age of 5. 
  • Fathers have custody of teenage boys & mothers have custody of younger girls. However, this is not a set rule and mainly focuses on the child's best interests. As a result, a child over the age of nine years is evaluated. 
  • When a child is born illegitimately, guardianship is given to the mother. 
  • If both parents are unwilling to take custody of the child, or if the court believes it is in the child's best interests, possession of a Hindu child is granted to a third party.
  •  When neither the parents nor any child's relatives initiate custody proceedings, the court will determine who is the most acceptable party to take possession of the Hindu child. 
  • A parent should not be granted possession of a Hindu child if he has left the Hindu religion but later converts to another religion and ceases to be a Hindu.

2. Custodial rights under Muslim Law

  • According to Muslim Law, the mother has possession of a Muslim child until he reaches the age of seven for a boy and the age of maturity for a girl. 
  • A person shall not be given custody of a Muslim child if that individual isn't of a sane mind.
  • If a person resides in an unsuitable environment for the wellbeing of children or is living an unethical life, the court will not allow them to retain the child in their custody.

3. Child custody under Christian law

The custody privileges of a child upon the separation of a Christian parent are governed by the laws outlined in Section 41 of the Divorce Act of 1869. The child's welfare is critical because the parents must demonstrate competence in raising the child. If the court is not convinced of the parents' abilities, it may refuse custody.

4. Parsi law custody rights.

The Guardians and Wards Act of 1890 governs custodial rights. The Act is primarily concerned with the welfare of children and contains numerous legislative provisions to that end.

Conclusion

Custody of a child is still one of the most delicate & complicated problems stemming from the parents' divorce. As observed, custody is mainly influenced by the standard way created by the courts in this regard. There has been a significant conflict between the many religious laws and the uniform legislation created by the State. But, the debate over diverse legal perspectives should not jeopardize the child's future. While addressing different segments of legislation, it should be recalled that the primary motivation for child custody is the child's wellbeing as well as secured social welfare. As a result, any impediment caused by law in this regard should be recognized and eliminated.

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