Sep 28, 2017
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Child Custody: What are Child Custody Laws In India?

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This article provides a brief introduction to the concept of “Child Custody Laws In India”. Child custody laws in India differ according to state and religion and governed accordingly.

Child Custody Laws In India

One of the most crucial issues that comes up after getting a divorce is the matter of child custody. After their legal separation, problem of custody arises when either of the parties is incompetent to raise a child.

Matrimonial court

The matrimonial court intervenes in this issue during the proceedings of legal separation. The matrimonial courts looks upon the welfare of the child and then the needs of the spouses regarding the custody. This court have vested with powers under the matrimonial enactments to decide such questions and pass orders relating to custody. This court have the powers under the matrimonial enactments to decide education and maintenance of the children time to time. Such orders could modify, revoke or change.

In India, children under 18 years of age supposed to have a legal guardian. The awarded guardianship to the party by the Court has the responsibility of taking care of the child. In some cases, the parents may share the custody of the child, but only one parent may given the actual physical custody of the child. Decisions of the court mostly depends on the best interests of the child.  Decisions of the court does not always depend on the arguments of each parent.

The principle of welfare of the minor is the foremost consideration but the court can also take views, the wishes of the children also. To ascertain the benefit of the children the court has to consider all other factors such as age, sex or wishes of the child. These courts can also give the custody of the child to third party (neither of the biological parents are given custody of the child) as long as the court feels the child remains safe with them. Thus, the power bestowed upon the matrimonial courts is of uttermost importance which has to be exercised thoughtfully.

Child Custody Laws Overview

Physical custody means that one parent should held responsible for the child’s basic/daily needs like housing, education and food. But in many cases, the non-custodial parent still has visitation rights.

The Guardians and Wards Act 1890 (GAWA)

Although there are some specifications under each personal law, Child custody laws matters in India are governed by The Guardians and Wards Act 1890 (GAWA), which is applicable to people of all religions in India. Under this Acts, generally, the custody of a small child is given to the mother. Custody of older boys may given to the father, and of older girls to the mother. However, courts also consider specific personal laws while giving their judgments.

The Hindu Minority and Guardianship Act 1956

Hindus are governed by The Hindu Minority and Guardianship Act 1956 (HMGA), which follows similar considerations as GAWA. Although the HMGA provides that the father is the natural guardian of the child, the paramount consideration for custody is the welfare of the child. Courts in India have therefore tended to give custody of young children to the mother, on the grounds that ‘children of tender years’ cannot manage without maternal affection.

Muslim personal laws

As per Muslim personal laws, custody of minor children transfer to mothers. But after the age of seven years, the mother’s right over the son ends. Custody of girls transfer to mothers until they attain puberty. One important aspect of this law is that the conduct of the mother is considered of great importance, and if that is found ‘objectionable’, she may not be given custody rights. The father has the right to custody after the mother’s term ends. In case of the absence of both parents,  the custody of the child transfers to the grandparents. Also, as per ‘Shia’ law, if a person ceases to be a Muslim, the child’s custody cannot be granted to him/her.

The Indian Divorce Act, 1869

In the case of ChristiansThe Indian Divorce Act, 1869 handles their custody issues. This Act has some provisions which state that the Court may pass such orders as it deems proper, including placing the child in its protection.

However, an important point to be noted is that irrespective of the customs or personal laws, any parent who wants custody of a child and cannot reach a settlement has to seek custody separately from the Court. There is never any automatic transfer of a child’s custody to a particular parent.

Courts Decision on Child custody Laws

The two types of child custody are as follows:

One is ‘sole custody’ where only one spouse gets the physical custody of a child. The other is ‘joint custody’ where both the spouses share the custody of the child.

The courts give their decision on child custody based on various aspects that deal with the welfare of the child. These factors include the character of the parent, economic conditions of the parents, any specified ‘will’ of a deceased parent, the moral environment at home, age and sex of the child and so on. Generally children’s preferences considered after 9 years of age. Some archaic considerations still remain, which means that in case of remarriage of a woman, generally custody could not granted to her while it may granted to a father who remarries, especially if the second wife cannot give birth.

 

Find lawyers in mumbai related to child custody.

 

Article Categories:
Child Custody · Family Law

Avani is a LL.B. student of New Law College. Classical use of language and adeptness with the written word make her treasure useful legal information. In her spare time, she writes prose and pursue an active interest in creative writing.

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