This article provides a brief introduction to the concept of “child custody”. On the basis of different religion child custody rules may differ in India. Child custody further classified as sole custody or co-parenting.
Key topics discussed under child custody:
- Rules for child custody for a mother in India
- In India, Rules for child custody for a father
- In India, Rules for child custody for a third party(Guardian)
- Rules for interim custody
- Sole custody
- Non-custodial parent
- The Guardians and Wards Act, 1890-
- The Hindu Marriage Act, 1955
- The Special Marriage Act, 1954
- Types of child custody
Questions answered in this article:
- Determination of child custody
- How to qualify for sole custody?
- What is co-parenting?
- The Guardians and Wards Act, 1890
- What are the mothers rights to her child?
- What is a non custodial parent?
- The Hindu Marriage Act, 1955
- The Special Marriage Act, 1954
- Types of child custody
- What are the fathers rights to a child?
- Child custody under christian law
- Custody of child under Muslim law
- Child custody under Parsi law
- De facto guardian under Hindu law
- De facto guardian under Muslim law
Child custody law overview
India is a secular state. Here the people of different communities live together cordially. Hence, the idea of marriage has evolved in the coming years. People belonging to the different religion have the freedom of marrying the person from the other religion. Where some marriages lasts and some don’t, this can give rise to the issue of child custody. Law has also evolved along the years. Law can overcome such problems along with the issues of couple.
- Hindu Marriage Act, 1955 deals with Custody of Children.
- The Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith).
- The Indian Divorce Amendment Act, 1869 deals with Custody of Children for couple following Christian faith.
The problem of child custody arises when either of the parties is incompetent to raise a child. The matrimonial court intervenes in this issue during the proceedings of legal separation. Matrimonial courts looks upon the welfare of the child first and then the needs of the spouses regarding the custody. The matrimonial courts have vested with powers of the matrimonial enactments to make decision of such questions. They have also vested with the powers as to pass orders relating to custody, education and maintenance of children. These orders could modify, revoke or change.
Principle of welfare of the minor is the foremost consideration. The court takes the wishes of children under consideration. To ascertain the benefit to children the court should consider all other factors such as age, sex or wishes of the child. Courts can also give the custody to third party as long as the court feels the child is safe. Thus, the power bestowed upon the matrimonial courts is of uttermost importance which should exercised thoughtfully.
The easiest way for a parent to seek Sole Custody is:
a) when he or she can prove that one parent happen to be an abusive,
b) when he or she can prove that one parent is unfit,
to raise a child and so the other parent gets the custody. If a child is an illegitimate child then the child custody is that of the mother unless the father files.
Rights of parents sharing their children’s custody (Co-parenting)
Child custody is as it is the most controversial part in the family law litigation, where there is a whole lot of a chaos and the court room drama to pull the other parent down by flaunting his cons and all the flaws and there are those parents who forgets that the child need both the parents in his or her growing stage. In the end the court will give its judgment only after examining the interest of the child except in cases where one parent is abusive or unable to provide proper care and supervision.
For a people who understand their children, opt for co-parenting after leaving all their personal issues aside and focusing mainly on their children as their main priority. Mediation helps parents figure out how to manage child care under a totally new set of circumstances. Mediator will probably create this plan on a large, erasable wall calendar, asking for ideas as to when each of parents would like to assume primary responsibility for the children’s care. Once a tentative parenting plan gets ready, the family can try it out for a month or two, before deciding whether or not to include it in their settlement agreement. If parts of the plan need fine-tuning, parents can discuss proposed changes, then revise their plan until it works smoothly for all involved. Some mediators permit older children to attend a mediation session to help with the parenting plan.
The non-custodial parent can get different types of access to the child based on circumstances and convenience. For example, court could grant weekly, fortnightly, daily or monthly visitation rights. It can be day or overnight access. It could also be free access with no fixed schedule, but as per the parents’ and the child’s convenience.
Hence, the thinking has shifted from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The principle on which custody is decided is the ‘best interests of the child’. Therefore, the parent who can take better care of the child’s emotional, educational, social and medical needs is favored.
Custody of children.—In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made.
Custody of children.—In any proceeding the district court may, from time to time, pass such interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending.
The Guardians and the Wards Act, 1890 is the universal law pertaining to issues involving child custody and guardianship in India, regardless of the child’s religion but it is not applicable in the state of Jammu & Kashmir. The Act empowers the High Court to order the District Judge or an officer subordinate to him to grant permission to his subordinate officials to dispose any case which is transferred to him. The Court is authorized under the Act to appoint legal guardian to uphold the interests of a minor and an order shall be made in this behalf to affirm someone as the guardian.
The application regarding the guardianship of a minor shall be considered only by the District Court having jurisdiction specified by the Act. Guardians appointed by the courts can do things in the interest of the minor with a view to protect the interests of minor and to grant security to the property of a minor. The Parliament has introduced The Personal Laws (Amendment) Bill, 2010, which aims to amend The Guardianship and Wards Act, 1890. The Bill seeks to amend Section 19(b) of the 1890 Act in the Court shall not appoint a guardian where the parents of the minor are alive and are physically and mentally fit to look after the interests of a minor, but the Section excludes a married female. The Bill received the assent by the President and came into effect on 31st August, 2010.
Rights of a mother for seeking her child’s custody
In the past, many courts favored mothers when awarding child custody. However, as gender roles have changed and more women work outside the home, these assumptions no longer apply. Today, most custody laws are gender neutral and do not favor mothers over fathers. Instead, courts must consider the child’s best interests when awarding custody.
It is not easy to figure out how to win custody as a mother, but it is good to keep in mind that most courts, even ones in different states, will focus on similar factors when considering a child’s best interests. The mother is the preferred custodial parent when the child is less than five years old. The opinion of a child who is over nine years old is considered and if the mother is a housewife she even then can claim the custody of the child and the father has to provide child support. In some states, an unmarried mother is assumed to have sole custody of her child. However, if an unmarried father has established paternity, he can petition the court for child custody. Again, custody rules vary from state-to-state and religion-to-religion.
Right of a father for seeking his child’s custody
Earlier mother had the advantage of the custody but as the evolution brought gender discrimination to vanish, people came to understand as the children need their mother the most they need their father too. The general law relating to guardians and wards is contained in the Guardians and Wards Act, 1890. It clearly lays down that father’s right is primary and no other person can be appointed unless the father is found unfit. This Act also provides that the court must take into consideration the welfare of the child while appointing a guardian under the Act. Natural guardian for both boys and unmarried girls is first the father and then the mother. Again, custody rules vary from state-to-state and religion-to-religion.
Types of child custody
Custody Under Christian Law:
Christian law per se does not have any provision for custody but the issues are well solved by the Indian Divorce Act which is applicable to all of the religions of the country. The Indian Divorce Act, 1869 contains provisions relating to custody of children. Section 41 of the said Act provides with the powers to make orders as to custody of children in suit for separation. -In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the said Court.
Custody Under Muslim Law:
The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. Mother has the right of custody so long as she is not disqualified. This right is known as right of hizanat and it can be enforced against the father or any other person. The mother’s right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right.
”Among the Hanafis, it is an established rule that mother’s right of hizanat over her son terminates on the latter’s completing the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son till he is weaned. Among the Malikis the mother’s right of hizanat over her son continues till the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same.”
Among the hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malikis, Shafiis and the Hanabalis the mother’s right of custody over her daughters continues till they are married. Under the Ithna Ashari law the mother is entitled to the custody of her daughters till they attain the age of 7. The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Mother cannot surrender her right to any person including her husband, the father of the child. Under the Shia school after the mother hizanat belongs to the father. In the absence of both the parents or on their disqualification the grandfather entitled to custody.
In the absence of mother following females entitled to custody (the Malikis) :
- Maternal grandmother
- Maternal great grandmother
- Full sister
- Maternal aunt and great aunt
- Uterine sister
- Consanguine sister
- Paternal aunt
Father’s right of hizanat-
All the schools of Muslim law recognize father’s right of hizanat under two conditions that are:
- On completion of the age of the child up to which mother or other females are entitled to custody.
- In the absence of mother or other females who have the right to hizanat of minor children.
- Father undoubtedly has the power of appointing a testamentary guardian and entrusting him with the custody of his children. Other male relations entitled to hizanat are:
- Nearest paternal grandfather
- Full brother
- Consanguine brother
- Full brother’s son
- Consanguine brother’s father
- Full brother of the father
- Consanguine brother of the father
- Father’s full brother’s son
- Father’s consanguine brother’s son
Among the Shias hizanat belongs to the grandfather in the absence of the father.”
When Right of Hizanat may lost by Hazina or Hazin. All the schools of Muslim law agree that a hazina should be:
- Of sound mind
- Good moral character
- Living at such a place where there is no risk, morally or physically to the child
- Of such a age which would qualify her to bestow on the child the care it may need (not applicable to the mother)
In Shia Law, a person ceased of Muslim religion, not entitled to the custody of child. Also hazina who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of hizanat. The cardinal principal of hizanat in Muslim law is the “welfare of the child”. Poverty or wants of funds to maintain the child cannot restrict the rights of hizanat. Also neither the father nor the mother has the right to remove the child from the matrimonial home. Hazin may deprived of the custody of the child if he is a minor or of unsound mind. Also hazin who is leading an immoral life or who is a profligate has no right to the custody of the child.
Custody Under Parsi Law
Custody of children in any suit under this Act, the Court may from time to time pass such interim orders and make such provisions in the final decree as it may deem just and proper with respect to the custody, maintenance and education of the children under the age of 25[eighteen years], the marriage of whose parents is the subject of such suit, and may, after the final decree upon application, by petition for this purpose, make, revoke, suspend or vary from time to time all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such final decree or by interim orders in case the suit for obtaining such decree were still pending.
The issue of custody is dealt with by The Guardians and Wards Act of 1890, under which it is a well-established principle that the welfare of the child is paramount i.e., the most important thing considered by the Guardian Court when deciding custody.
Therefore no matter what customs or personal law rules the parents community or sect follows regarding custody, any parent who wants custody and does not presently have custody has to seek custody from the Guardian Court. In other words, there is never any automatic transfer of a child’s custody to a particular parent.
De Facto Guardian under Hindu Law
A de facto guardian is a person who takes continuous interest in the welfare of the minor’s person or in the management and administration of his property without any authority of law. Hindu jurisprudence has all along recognized the principle that if liability is incurred by one on behalf of another in a case where it is justified, then the person, on whose behalf the liability is incurred or, at least, his property, is liable, notwithstanding the fact that no authorization was made for incurring the liability.’
The term ‘de facto guardian’ as such not yet mentioned in any of the texts, but his existence has never been denied in Hindu law.
In Sriramulu, Kanta. said that Hindu law tried to find a solution out of two difficult situations :
one, when a Hindu child has no legal guardian, there would be no one who would handle and manage his estate in law and thus without a guardian the child would not receive any income for his property, and
secondly, a person having no title could not permit to inter-meddle with the child’s estate so as to cause loss to him.
The Hindu law found a solution to this problem by according legal status to de facto guardians.
A mere inter-meddler is not a de facto guardian. An isolated or fugitive act of a person in regard to child’s property does not make him a de facto guardian. To make a person a de facto guardian some continuous course of conduct is necessary on his part. In other words, a de facto guardian is a person who is not a legal guardian, who has no authority in law to act as such but nonetheless he himself has assumed, the management of the property of the child as though he were a guardian. De facto guardianship is a concept where past acts result in present status.
The Privy Council in Hanuman said that ‘under Hindu law, the right of a bona fide encumbrance, who has taken a de facto guardian a charge of land, created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not affected by the want of union of the de facto with the de jure title.
De Facto Guardian under Muslim Law
A de facto guardian is a concept under which past act results in present status. Self appointed guardian means de facto guardian. Tayabji defines a de facto guardian as “an (unauthorized) person who as a matter of fact has the custody and care of the person and/or of his property.” A de facto guardian has no power of alienation of a minor’s property and that such an alienation is void. He has no power to convey any right of interest in immovable property which the transfer can enforce against the minor. A partition of property effected by the de facto guardian is void and not binding on the minor. The period of limitation to set aside a transfer by the de facto guardian is 12 years.
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