The law governing child custody is similar to guardianship. Guardianship is the rights and powers that an adult has over the property of minor but, child custody is a narrower concept compared to guardianship. The concept of child custody is related to the upbringing of the child, day to day care and control of the minor child. When a marriage ends up the person who gets most affected is the child of the divorced couple. So, at the time of divorce or judicial Separation the main issue arises is about the custody of the child. The court resolves the issue by considering the welfare of the child. The custodial parent look after the child’s education, medical, physical and other financial commitments but the non-custodial parent only holds the right to meet.
STATUS OF MINOR AFFER DIVORCE:
After the dissolution of the marriage both mother and father have equal rights on their child. The court ensures that the child should get the affection of both mother and father. The physical custody of child will be granted to either father or mother but the other parent gets the visitation rights. In case, both the parent are not in the capacity to hold the child, the custody of child may be awarded to their paternal or maternal grandparents. The court may also appoint a third party to look after the child. The court will grant the custody of the child considering the best interest and welfare of the child irrespective of the claims of the parties.
TYPES OF CUSTODY:
After the dissolution of marriage the court order the custody of child in the following forms:
- Physical custody: In this type of custody, the child lives with the custodial parent and the custodial parent undertakes the child’s day to day care.
- Joint custody: In joint custody, the child lives with both the parents for a significant period of time such as a week or month. Both the parents will have the legal right over their minor child.
- Sole custody: In this type of custody, the child lives only with one parent. This mostly happen in the cases where the other parent is abusive, incapable and violent.
- Third party custody: In this case, the child lives with a third party who is appointed by the court instead of their biological parents.
CHILD CUSTODY UNDER VARIOUS LAWS:
India is a secular country, the laws governing child custody is different for every religion. Thus, every religion has their different personal laws to govern such as:
- Guardians and Wards Act, 1890 is a universal act which provides remedy to every parent. It is a common law pertaining for all Indians irrespective of their religion.
- Custody under Hindu law is governed by Hindu Marriage Act, 1955 and Hindu Minority and Guardianship Act, 1956.
- Custody under Muslim law is governed by Muslim Personal Law (Shariat) Application Act, 1937.
- Custody under Christian law is governed by Indian divorce Act, 1869.
CUSTODY UNDER GUARDIANS AND WARDS ACT 1890:
This is a general law which provides remedy for the issue of child custody to the parents. The remedies provided under this act are as follows:
- Section 7 of the act empowers the court to appoint a guardian for the welfare of the minor child.
- Section 17 of the act highlights the matter to be considered by the courts. As section 17(1) states that, while appointing a guardian to the minor, the court may take consideration of the minor’s personal law.
- Section 17(2) of the act states that, the court should consider the age, sex, religion of the minor and the character, capacity of the guardian. The court may also appoint the nearest kin as a guardian to the minor.
- Section 17(3) states that, the court should ask the opinion of the minor if he is capable of making intelligent opinion. The court should decide the cases considering only the welfare of the minor.
CUSTODY UNDER HINDU LAW:
The Hindu Minority and Guardianship Act, 1956 is similar to Guardians and Wards Act, 1890. This act is applicable only to Hindus, Jain, Buddhist, and Sikhs.
- Section 6 of the Hindu Minority and Guardianship act states that, the natural guardian for the Hindu minor and his property will be his/her father. After the father the mother will be the natural guardian for the minor child. The child less than 5 years will be in the custody of mother as the court ensures that the child get the love and affection from the mother.
- In case of illegitimate child, the mother will be given first preference.
- The person will not be entitled for the custody of minor, if he/she converted to other religion. If he/she renounced from the world.
- Section 13 of the act states that, the court should consider only the welfare of the minor while appointing the guardian.
- The choice of child will be taken into consideration by the court after the age of nine
The Hindu Marriage Act ,1955 deals with the maintenance, education and caring of the child. The Section 26 of the said act highlights that, the court may pass interim order, judgments, and amendment regarding the maintenance of the minor child and dispose the decree within 60 days from the date of service of notice of the court.
CUSTODY UNDER MUSLIM LAW (HIZANAT):
The matter relating to the child custody in Muslim law will be dealt under the provision of Muslim Personal Law (shariat) Application Act, 1937. Certain principles will be followed under Muslim law while deciding the custody of the minor child as they are:
- In Shia law, the mother is entitled for the custody of child up to 2 years in case of son and 7 years in the case of daughters.
- In Sunni law, the mother is entitled for the custody of child up to 7 years in case of son and until puberty in the case of daughters.
- If the women re-marry the custody of the child will be transferred to the father.
- After the completion of the mentioned age, the custody of child goes to the father
- The opinion of child is considered, if he is capable of understanding his best interest. But the consent of child should be clear and there should be no compulsion from the parents.
- The person will be denied from holding custody, if he/she possesses a bad moral character.
- If he/she coverts to other religion.
- A person who does not have a sound mind.
- A person who cannot take proper care of the child.
Thus, the above mentioned rules should be followed while awarding the custody of the child under Muslim law.
CUSTODY UNDER CHRISTIAN LAW:
The issues regarding the child custody is solved by the provision of Indian Divorce Act, 1869 which is applicable universally. The Christian religion needs to follow the rules prescribed under section 41 of the said act. As section 41 of the act states that, the court may pass an interim decree for the maintenance, education and welfare of the minor child. In addition to it section 42 and 43 of the same act holds the right to decide upon the child custody after the decree of separation or divorce is passed.
The courts have started to consider the custody disputes as a right of the child rather than the right of the parent. Even though the court considers the personal laws of the parties and preferences are given to the parents. But, the child’s welfare of paramount of importance is the foremost thing which will be considered by the court.