Laws Pertaining to Child Custody in India

Since India is a secular country with a diverse population, each religion has its own set of laws pertaining to child custody, which governs how a parent applies for custody of their child.

• Hindu Law: The provisions regarding custody are found in 

Section 26 of the Hindu Marriage Act (HMA): It concerns the upkeep, care, and education of the child, and the child's custody is only recognized when both parents practice Hinduism.

Section 38 of the HMA: If both parents practice different religions or are married in a court under this law, this section establishes the legitimacy of the parent's custody of the child.

Hindu Minority and Guardianship Act: This law restricts custody requests for minor children to those whose biological parents are Hindus. 

• Christian Law: Regarding child custody, the Christian religion must abide by the rules and modifications outlined in Section 41 of the Divorce Act of 1869. In addition to this legislation, Sections 42 and 43 of the said Act grant the authority to determine the child's custody upon the completion of the separation judgment. The child is assigned to someone who is better at serving as a batter's guardian and has been proven to be so; the claim may even be rejected if the court determines that neither parent is capable of providing the child with a suitable environment.

• Muslim Law: As per the Right of Hizanat, a mother alone is entitled to request custody of her child under Muslim law, provided that she remains innocent of any wrongdoing. According to Muslim law, a child's mother has custody of them until they turn seven years old for boys and until they reach puberty or majority for girls. Since the father is regarded as the kid's natural protector, custody of the child stays with him until the girl reaches puberty or the age of majority, and the boy reaches the age of seven.

• Parsi Law: Provisions from the Guardians and Wards Act of 1890, pertaining to child custody in Parsi law. Its primary goal is the child's welfare, and it will stop at nothing to ensure that the child's welfare is verified.

Laws Pertaining to Child Adoption in India

The idea of adoption was introduced in order to grant orphans, abandoned children, and surrendered children their right to a family. Securing the fulfilment of one's funeral rights and preserving the continuation of one's lineage were the driving forces behind the creation of this notion.

• Hindu Law:  According to the Hindu Adoption and Maintenance Act of 1956:

Adopting a child is open to any male Hindu who is of sound mind, meets the requirements for adoption, and is a major. Prior to adoption, a married Hindu man seeking to adopt a child must obtain his wife's approval, which must be given freely.

Adopting a child is open to any female Hindu who is of sound mind, meets the requirements for adoption, and is a major. Prior to adoption, a married Hindu woman desiring to adopt a child must obtain her husband's consent, which must be given freely.

• Christian Law: Christianity does not recognize adoption. Adoption is a personal law matter because it relates to a child's legal status. A Christian may only adopt a child, according to the Guardian and Ward Act of 1980. When the child becomes 21, they have the option to cut all ties or remain with the guardian. Furthermore, the law forbids such a child from inheriting the property.

• Muslim Law: Adoption is not recognized by Muslim law and does not exist in Islam. Adoption, in the sense that the Hindu legal system understands it, does not exist in Muslim law. Nonetheless, the Guardian and Ward Act of 1980 permits the lawful adoption of children from foster homes.

• Parsi Law: Parsis in India do not recognize adoption, in line with Muslim law; yet, they are able to adopt a child from an orphanage by obtaining the consent of the relevant court through the Guardian and Ward Act of 1980.

The status of women in society has greatly improved, as has the adoption of legislation for Hindus. However, Christians, Muslims as well as Parsis are not able to lawfully adopt a child simply due to the absence of a universal civil code on adoption. These religions in India will only be able to lawfully adopt children through the enactment of a common civil code, which would also serve to enhance the health of childless parents. The child who is adopted will have a promising future and receive the necessary care and protection. 

Undoubtedly, this is a complicated procedure, but if it is carried out, every child without a parent will attend school and lead a life he could never have imagined.

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