In family law, anything pertaining to child custody becomes a matter of utmost importance, especially pertaining to divorce or separation. In India, custody laws are best governed by personal laws based on religion interspersed with some secular laws such as the Guardians and Wards Act 1890. The overall essence of child custody laws is to secure the welfare of children, so that they grow up in a natural atmosphere.
Child Custody Law in India
The custody laws in India are predominantly based on religious beliefs and statutory provisions. Here is a list of the key laws governing child custody in India:
Hindu Minority and Guardianship Act 1956
- The Hindu Minority and Guardianship Act 1956 applies to Hindus, Buddhists, Sikhs, Jains. The father is the natural guardian of a minor child according to this Act; his rights are vested in the mother, followed by consideration for the importance of the welfare of the child. Thus, custody may well be denied to the father because the welfare of the child is best served by the granting of custody to the mother.
Guardians and Wards Act 1890
- As a secular legislation, it applies to all religions. This law prescribes for the appointment of guardians to minors and allows courts to adjudicate matters pertaining to child custody in accordance with the welfare of the child. In cases where both parents are unfit to raise the child or are deceased, the court may appoint a third person to act as the child's guardian.
Custody Provisions Under the Hindu Marriage Act 1955
- According to Section 26 of the Hindu Marriage Act (HMA), either parent can seek custody of a child while divorce proceedings are being held, or subsequent to that. The court will decide custody matters after hearing arguments from all parties concerned and considering the welfare of the child, including the child's age, the child's wish, and emotional well-being. The expectation behind the law is that the child shall receive adequate care, education, and upbringing.
Muslim Personal Law on Child Custody
Amongst Muslims, custody laws are following the rules of Hizanat where the mother enjoys the right to retain minor children with her company until a definite age. These are usually:
- A son is brought up by his mother until seven years old and a daughter up to puberty.
- The father acts as guardian and is liable for maintenance expenses.
- Custody is granted to father by courts in case mother is not able to take guardianship of her children.
Christian and Parsi Laws on Child Custody
- Custody matters for Christians are dealt within the framework of the Indian Divorce Act 1869, wherein a court will determine within whose custody a child is going to be ultimately based on his or her welfare irrespective of the rights existing by way of the law between the parents.
- For Parsis, it is through the Parsi Marriage and Divorce Act 1936 courts will decide about custody of children as per their best interests.
Types of Child Custody in India
Physical Custody
- One parent has the child living with him/her and the other parent has right of visitation. This is the most common form of custody.
Joint Custody:
- Physical custody of the child is shared equally between the parents, ensuring that the child spends equal time with both.
Legal Custody:
- This implies legal rights for one or both parents in making decisions about education, health care, and/or future of the child.
Special Guardianship:
- This occurs when neither parent is in a position to keep or look after the child and the third party is appointed as a guardian.
Sole Custody:
- One of the parents is granted complete custody on the ground of unfitness of the other parent due to reasons like neglect, abuse, or criminal history.
What Are Father's Rights on Child Custody?
Legal right can be claimed by fathers to take custody of their children, but Indian courts give more precedence to the child's welfare than parental rights. Generally,
- Application for custody can be made by the father under Section 26 of the Hindu Marriage Act (HMA).
- Courts generally lean on the father's side in case it is an older male child if that is in the best interest of the child.
- Natural guardian under Hindu Minority and Guardianship Act 1956 is the father, but it does not confer the custody.
- Financial worth, emotional bond, preference by the child is being considered by courts.
What Type of Custody is Best for a Child?
The best custody of the child is dependent on the requirement and condition of the child. Many times, courts favour joint custody since both parents live with the child. However, if one of the parents is unfit, then custody is entirely awarded to the other more responsible parent.
In What Cases Do Fathers Get Custody?
Fathers may likely to gain custody over the following instances:
- If the mother would be unfit due to reasons of mental illness, crime or substance abuse;
- The child is older (most especially boys above 7) and the father can provide better financial and emotional inputs;
- The child may state their preference to go with the father;
- If the mother has remarried and father deems as guardian makes the better; and
- Under Muslim law, sons belong to fathers after the age of 7 and females when they have attained puberty.
How Can a Custody Lawyer Help You?
Custody lawyers are here to help you to have the much-needed assurance for the safety of your parental custody rights. Here are the ways:
- Legal Advice: A custody lawyer will help you understand adoption, custody, divorce, and child support laws as per Hindu, Muslim, Christian, and Parsi laws.
- Filing Custody Petitions: Filing petitions using the provisions of Section 26 of the Hindu Marriage Act (HMA) or other applicable laws will also be done by them.
- Negotiation and Mediation: Child custody agreements will be negotiated by lawyers with the parents to ensure that both have fair access.
- Representation in Court: If any dispute arises, a family lawyer represents him before the court to plead for the child welfare defense case.
- Enforcement of the Custody Orders: In case one parent is threatening to withhold custody, a lawyer enforces it legally.
Conclusion
The child custody laws in India say that the parameters for child custody are determined in the welfare of the child against the right of the parent. Whether this is under Hindu law, Muslim law, Christian law, or under the Guardians and Wards Act, the well-being of the child takes precedence in every decision made by a court. Therefore, the fathers are equal towards requesting custody and the case will determine this right with regard to certain conditions. A good custody lawyer makes sure that your case gets presented with utmost efficiency while protecting the best interests of your child.
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