What is Child Custody in India?
In Indian culture, marriage is a revered and festive occasion, bringing together two families and celebrating the union of two souls. But after the separation of both the husband and wife, the most affected person is the child who is born out of the marriage. So, for this in Indian Law while deciding who gets the custody of a child always keep in mind the welfare of the child.
Both the parents in India have the legal rights over the child. However, the process involves maintaining the child with care and control by the parent who is given custody of the minor child by the court.
How Child Custody Works in India?
In normal situations, both parents have joint custody of their child. But if they do not want to share the children's custody jointly, the court will take the decision that who gets the full custody.
Who Gets Custody of the Children?
While deciding the custody of the child, the court only considers the best interests of the child where the welfare and the care of the child are included. Generally, in India, both parents have a significant role in raising their child.
If one parent gets custody of the child it does not mean that the other one has no rights over the child the other parent who does not have the custody is still able to provide guidance and care to the child.
Types of Child Custody in India
Physical Custody:
Physical Custody means that the parent gets the guardianship of the child whereas the other parent only being allowed to visit the child periodically. This court ensures that the child has the all-family benefits and has a good upbringing.
Joint Custody:
Joint custody is the most common type of child custody. In this type of custody, parents decide for their child jointly. In this one parent cannot make a decision individually but both parents have the right to make decisions jointly.
Special Guardianship:
This type of custody is recognised by India where the guardian or any other person who is not the biological parent of the child is given custody of the child after the divorce of the child's parents. This custody is only possible when both the parents of the child agree to this.
Sole custody:
In this type of custody, one parents have all custody rights over the child. This is because of the prior abusive record of the other parent, the other parent was excluded entirely and denied by the court any rights over the child.
Laws Governing Child Custody in India
In India there is different communities exist therefore India has different laws for different communities. Same as there are different laws for dealing with the custody of the child.
Hindu law’s custody rights: Hindu laws govern both marriage and separation. The Hindu Minority and Guardianship Act, 1956, Hindu Marriage Act, 1955 and Special Marriage Act,1954 deal with the custodial rights of the parents after the separation.
Section 26 of Hindu Marriage Act, 1955: Section 26 is only applicable if both parents are Hindus which deals with the child’s education and maintenance. In this act, the court can pass the judgements, and orders for the maintenance of the child and can also dispose of the pending decree within 60 days from the date of the notice of the service.
Section 38 of the Special Marriage Act, 1954: This act validates when both parents belong to different religions or have done a court marriage. In this act also the court can pass orders, judgments, and amends at any point in time and dispose of the pending decree within 60 days of the service date.
Hindu Minority and Guardianship Act, 1956: Under this Act, only biological Hindu parents have custodial rights over the child. Third-party have no custodial rights under this act.
Custody of child under Muslim Law: In Muslim law, the custody of the child is naturally given to the mother of the child till the child reaches the age of seven years. After this, the father becomes the natural guardian of the child.
Custody of child under Christian law: In the separation of Christian parents, the custodial rights are governed under section 41 of the Divorce Act of 1869.
Custody under Parsi law: Under Parsi law, the custodial rights over the child are governed under The Guardian and Wards Act, of 1890.
What is Child Custody after divorce in India?
The legal provisions in India for child custody fall under the personal laws of the Individual’s religion like Hindu, Muslim, Christian or Parsi laws. But the Guardians and Wards Act, of 1890 applies to all religions and has neutral laws for all religions.
Types of custody recognized by the Indian law are:
1. Sole Custody
2. Joint custody
3. Visitation Rights
What are the Reasons for Denying Child Custody?
The reasons included for denying the custody are:
If in history a parent is involved in domestic violence or abuse then the court deems them unfit for custody.
If the parents indulged in alcohol or drugs, the court can deny custody to that parent.
If the parent's mental health is not good which negatively impacts the child, then the custody can be denied.
Instability of the parents is also a factor in the denial of custody.
Conclusion
In India, we have seen the strong family bonds tradition and care of children. Sharing parental responsibilities is a deeply rooted culture in India.
However, after the separation of parents, the custody of children is the most sensitive issue. Various laws govern the different communities’ custodial rights. As we cannot risk the future of the child the court needs to consider all the factors before giving the judgement over the custody of the child.
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