Child Custody Laws in India

A breakdown in a marriage impacts the children the most. One of the burning issues after a divorce is that who will get the physical custody of the child. In many such cases, children end up being treated as chattel and get caught in an emotional turmoil. The Indian laws and courts stress upon the welfare of the child as the most important factor in deciding that who will get the child custody.

 

Index 

• What is Child Custody?

• Who can Claim it?

• What are the Different Types of Child Custody?

• What are the Laws dealing with Child Custody?

• What Constitutes Welfare of the Child?

• Child Maintenance 

• Need for a Child Custody Lawyer
• Conclusion 

What Is Child Custody?

Child custody can be defined as the right given by the court to one of the parents to look after the minor (below the age of 18 years) child after the divorce. In some cases, the court awards the custody to a third party after keeping the well being of the child in mind. The parent in whom the physical custody of the child is vested is supposed to look after the general upkeep of the child including health, education, nutrition, lifestyle, etc., while the other parent is granted the visitation rights to the child. The decision of the court is based upon the welfare of the child. In some cases where the parents are dead or if they are not competent to look after the child then the grandparents or some relatives can also claim the custody. The court might also grant the custody to a third party or a foster care if it thinks that the family is not competent to take care of the child.

Who can Claim the Custody of the Child?

Both the mother and father of the child have an equal right to claim for the custody of the child. However, the final adjudicatory authority is the court which makes a decision on the basis of various factors contributing towards the well being and the bright future of the child. The secular act which governs the issue of child custody is Guardian and Wards Act, 1890.  The court try to balance the provisions of this act with the personal laws (law based on religion) of the parents. While one parent gets the physical custody of the child, the other parent gets the right to access i.e., the visitation rights to the child. It is important that the other parent must get the visitation rights so that the child gets the love and affection of both the parents. This also ensures that the parent with the physical custody keeps up with the upkeep of the child.

 

Types of Child Custody 

Child custody can be of various types which is either decided by the court or on the basis of a custody agreement in between the parents. The terms of this agreement must be carefully drafted as it controls the general well being and nurturing of the child.

The various types of custody which the con grant after divorce include-

• Physical Custody of the Child

When the physical custody of the child is granted to a parent in that case the child resides physically with that parent while the other parent gets the right to visit the child from time to time. The parent with the custody acts as the primary guardian of the child. This type of settlement ensures that the child gets a homely environment. It also caters to the child’s need of love and affection from both the parents. 

• Joint Custody 

In this type of custody, both the parents get the custody rights in intervals. This does not mean that the couple has to stay under the same roof even after the divorce. However, the child stays with both the parents in intervals as per the stipulated terms in the contract. This type of arrangement is beneficial as both the parents get an equal opportunity to stay with the child and neither of them feels deprived. The child also gets the love, affection and attention of both the parents. 

• Sole Custody 

In this case, the complete custody of the child is granted to one child while the other is not allowed to even visit the child. This type of decision is taken by the court on the basis of some facts like abusive behavior of the parent, their conduct, mental infirmity, addictive nature, etc.

• Third Party Custody

In this type of custody, the custody of child is granted to some other third party and not the biological parents. This decision is taken by the court if it feels that the biological parents of the child are not competent to look after the welfare of the child. This third party can be a relative of the child or his grant parents, etc.

• Split Custody 

If there are more than one child from the marriage, then the custody of the children is divided and alternated among the parents. 

The most important factor considered by the courts while making a decision on the custody of the child is the welfare and a bright future of the child.

Laws Governing Child Custody 

Since child custody is a family law issue, various personal laws depending upon the religion of the parties is applicable on the issue of child custody. Different laws based upon different religions dealing with child custody are-

• Child Custody under the Hindu Laws 

Hinduism includes other religions like Sikhism, Jainism, and Buddhism and hence the Hindu laws are also applicable on these religions.  The statues dealing with child custody under the Hindu law include Hindu Minority and Guardianship Act, 1956 along with the Guardians and Wards Act, 1890. These two laws must be read in consonance and are applied harmoniously by the courts. 

The provisions dealing with child custody under these laws include-

• The custody of the child below the age of 5 years is mostly given to the mothers as it is considered that the mother can provide the early care and nurturing required by the child.
• As per the customary Hindu laws, father is considered to be the natural guardian of the child and hence, the custody of the child above the age of 5 years is given to the father. However, in case of an illegitimate child the custody remains with the mother. 
• The court gives utmost importance to the welfare of the child and might do away with the above provisions if it feels that these provisions might be contrary to the best interests of the child.
• The court might award the custody to some third party if it feels that the parents are not competent to look after the child. This third party can be the grand parents of the child or some other relative or some foster care.
• The court might deny the custody of the child to some parents on the basis of the following factors- untoward behavior, mental infirmity, addiction, conversion of religion, renunciation of world, financial factors or to a person who is incapable to look after the welfare or the best interests of the child.
• The court might grant the physical custody to one parent while the visitation rights is granted to the other parent.
• In order to make the child custody laws, gender neutral, an amendment was made in the Section 19(b) of the Guardians and Wards Act to bring the rights of the mother and father at par.

 

• Child Custody under the Muslim Laws (“Hizanat”)

The custody of a child under the Muslim laws is dealt by the Personal laws along with the Guardians and Wards Act. The provisions dealing with child custody under the Muslims laws include-

• As per the Shia law, the mother gets the custody of the child until the male child attains the age of 2 years while the daughter attains the age of 7.
• According to the Hanafi Muslim laws, the custody of the boy child remains with the mother until the age of 7 years and that of a girl child remains with the mother until she attains the age of puberty.
• The mother continues to hold the custody of the child until she is divorced and is single. However, if she contracts a marriage after the divorce, the custody gets transferred to the father.
• The child’s consent is considered if he is capable to make a decision. However, the court tries to verify the fact that whether the consent obtained is voluntary in nature or if the child is tutored for the same. In case of tutoring or coercion, the consent of the child becomes invalid.
• The custody of the child above the age of 7 years and the girl who has attained the puberty is transferred to the father. This is similar to the Hindu laws. Even in this case the biasness continues as the father is considered to be the natural guardian.
• However, even in the case of Muslims, the interest of the child holds the utmost importance and is given a priority over and above the above-mentioned factors. 
• The court might deny the custody of a child to a parent on the basis of the following factors- infirmity of mind, conversion of religion, person holding a bad moral character, addiction, woman who contracts a marriage within prohibited relationships, person who can’t take care of the best interests of the child.

 

• Child Custody under Christian Laws 

The concept of child custody under the Christian laws is dealt by the Indian Divorce Act, 1869 along with Guardians and Wards Act, 1890. The decision is based by the court as per the provisions under section 41-44 dealing with child custody. Even under the Christian laws, the future prospects and interests of the child hold utmost importance for the courts to base their decisions.

 

• Section 38 of Special Marriage Act 

If the couple had opted for a court marriage or inter-caste marriage, then the marriage gets registered under the Special Marriage Act. Section 38 of the Special Marriage Act deals with child custody. The court can pass interim orders and judgments under this provision after considering the best interests of the child.

 

• Child Custody under Parsi Laws 

The Parsi laws do not contain special provisions for child custody and hence, Parsis are governed by the Guardians and Wards Act. The court after keeping the best interest of the child has to pass an order within 60 days. The wife may also claim for child maintenance from the husband under this provision.

What Constitutes the Welfare of the Child?

The family courts while making a decision on the welfare of the child consider various factors which contribute towards a bright future of the child. These include-

• Age of the child.
• Nutrition and safety of the child
• Basic amenities like food, clean water, shelter and education 
• Ethical nurturing of the child
• Financial needs of the child
• Trusteeship of the properties if vested in the child’s name 
• Conduct of the parties contesting for the custody of the child 
• In some cases, attachment of the child with the parent and vice-versa is also considered.
• Overall, the well-being and upkeep of the child is kept in mind by the court while making a decision.

Child Maintenance 

Child maintenance is recognized in India under Section 125 CRPC and also under the personal laws of the country. The child can claim maintenance from the father. A mother can also claim the maintenance of the child from the father along with her own maintenance. The court fixes the maintenance amount on the basis of various factors like the financial status of the parties, income of the father, need and sustenance expenses of the child, education and welfare expenses, health and medical expenses if any, including others. The court may ask the parent to give the maintenance in fixed installments or in a lump sum manner. In some cases, the court might ask the parent to deposit the maintenance amount in the court and then it disburses it on the basis of the requisite needs. 

Need for a Lawyer for Child Custody 

Divorce can be quite cumbersome and taxing. The issue of child custody is very sensitive and needs to be dealt with great caution. A good family lawyer can help you in the case of child custody in the following manner-

• Understanding the applicable law
• Selecting the suitable child custody 
• Drafting of the child custody agreement with the relevant provisions 
• Settlement of the child maintenance amount 
• Filing for the interim custody and appeal  
• Mediation proceedings, if any 
• Collecting evidences
• Handling the procedure, documentation and appearances
• Counselling of the parents

Conclusion

It is very important to hire a good lawyer to deal with the child custody cases. The decision of child custody impacts the whole future of the child and hence must be taken with great caution and care. 

Ricky Chopra International Counsels have a dedicated team of family and divorce lawyers which is well versed in the applicable laws and complex issues. RCIC has  an experience of more than 3 decades in handling similar issues and hence, can provide the best solution in least turn around time.