During divorce or marriage annulment proceedings, the issue of child custody often becomes a matter for the court to determine. This articles highlights the rules related to the Hindu child custody law.
Hindu child custody law
Hindu child custody law article basically defines about legal guardianship of a child under the age of 18. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally give their decisions depending on the welfare of the child or children. Family law courts does not give decisions on the best arguments of each parent.
In general, courts tend to award physical Hindu child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal Hindu child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent held primarily responsible for the child’s housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights. Many of the religions practicing in India have their own personal laws and they have their different notion of custody.
In any proceeding under this The Hindu Marriage Act, 1955 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 purposes make from time-to-time, all such orders and provisions with respect to the Hindu child 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:
Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree should disposed of within sixty days from the date of service of notice on the respondent.
Custody to third persons
Ordinarily, Hindu child custody law should give to either of the parents. But where welfare so requires, custody may given to a third person. In ‘Baby v., Vijay’ granting Hindu child custody of two minor children to maternal grandfather, the court observed that even if the father was not found unfit, custody might transfer to a third person in the welfare of the child.
All the personal law matrimonial statutes make provisions for dealing with the issue of Hindu child custody. The provisions in the matrimonial Acts can, however, invoked only when there are some proceedings pending under the Act. Hindus have an additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Apart from this, there is the Guardians and Wards Act 1890 (GWA). This law depicts a secular law for appointment and declaration of guardians and allied matters, irrespective of caste, community or religion, though in certain matters, the court will give consideration to the personal law of the parties.
The provisions of the HMGA (and other personal laws) and the GWA are complementary and not in derogation to each other, and the courts deemed to read them together in a harmonious way. In determining the question of Hindu child custody and guardianship, the paramount consideration is the welfare of the minor. The word welfare has taken in its widest sense and must include the child’s moral as well as physical well-being. The word welfare also have regard to the ties of affection.
The English and Indian decisions are replete with such statements that :
- The children of tender years should commit to the custody of the mother,
- Older boys should be in the custody of the father, and
- Older girls in the custody of the mother. But these are judicial statements of general nature and there is no hard. and fast rule. As to the children of tender years it is now a firmly established practice that mother should have their custody since father cannot provide that maternal affection which are essential for their proper growth.