Quick Guide: Child Custody Laws in India

Child custody always becomes the bone of contention between parents getting divorced. Child custody can be defined as, The maintenance, care, and control of the child, shall be granted to one of the child’s parent by the court, who are seeing divorce or separating.”

Which Parent can get Child Custody from the Court?

There is no strict rule when it comes to granting the custody of a child to a parent. It depends on the situation. The situation where the custody legally and physically has been given to one parent is termed as “sole custody.” In this kind of case, only one of the parents is responsible for the child. There is also a “ joint legal custody”, here both the mother and father have the responsibility to maintain the child.  However, even in a joint legal case the court will designate one of the parents’ house as child’s legal residence and then the other parent is allowed to visit and even take custody of  the child for some time, as both the parents deem fit, unlike in case of sole custody, in most of the cases the other parent cannot meet the child (who does not get the custody.)

What are the Laws Governing  Child Custody?

  1. The Section 26 of Hindu Marriage Act, 1955 deals with the custody, maintenance and education of the child. The pending decree regarding the child should be disposed of within the time limit of 60 days.
  2. In case both the parents belong to different religious beliefs then the matter of child custody will be seen under Section 38 of the Special Marriage Act, 1954.
  3. If the parents belong to Christian faith, then the case of child custody will be dealt under, Section 41 of the Divorce Act, 1869. Under the same Act Section, 42 and 43 provide that the competent court has all the rights to decide the custody of the child after the decree has been passed for divorce or separation of the child’s parents.
  4. In a case of involvement of minor child who is a Hindu, the provisions of Hindu Minority and Guardianship Act 1956, especially section 6 of Guardianship Act should be taken into consideration. Under Hindu Minority, Section 6; guardians can only be biological parents and not step-parents. Thus, only one of the biological parents can be given the custody of the minor child.

Under all the above-mentioned sections the competent court has full jurisdiction to decide which parent will be given the custody of the child. Apart from maintenance, the court seeks many more cases where the custody should be provided to any of the parents. This is mainly done for the protection and well-being of the child, i.e. “in the best interest of the child.”

What Criteria Court Applies When Giving Custody?

Divorce or even separation is a situation where the child also suffers the impact; hence, it is imperative for the court to decide which of the parent is fit to take proper care of the child. Here are few things that  the court considers while giving custody of the child:

  1. The parent who is better at communication and ready to cooperate with matters concerned with the child is preferred to be given custody.
  2. Sometimes there are situations where one of the parents itself is not willing to take custody of the child, hence if custody is granted to such a parent, there are chances of abuse.
  3. How does the child interact with his/her siblings and parents are important because if the terms are not good, then custody is not given and should be not given also.
  4. The requirement of the child, it may be that the child is a newborn baby so that the mother will be given the custody of the child.
  5. What is the financial situation of the parents?
  6. Any history of consistence domestic violence in the family.
  7. With which parent the child will be safe and away from physical abuse.
  8. Stability of the parent and the house environment, i.e. with whom the child will stay healthy and safe.
  9. Sometimes the number of children is also a problem; hence, it is necessary to understand how much maintenance either of the parents can afford.
  10. Health and fitness of the parents.

The custody of the child is an important decision hence the court does and should take all aspects in notice.

Leave a reply:

Your email address will not be published.

Sliding Sidebar