While the couples part their ways and settle their disputes by taking divorce, it is not easy to settle the matter of the custody of their child. The couples may decide to move ahead in life separately but ultimately it is emotionally challenging for the child who suffers the most during their separation. Generally, child custody is decided among the parents before they petition the court for mutual consent divorce. However, a problem arises when parents cannot come to an agreement on custody of the child after divorce. The courts decide the cases of child custody on the case to case basis and the decision is taken on the child’s best interest.
So here arises a pertinent question relating to Child Custody.
Child custody and guardianship are the legal terms which are sometimes used to describe the legal and practical relationship between a parent and his or her child such as the right of the parent to make decisions for the child, and the parents’ duty to take care of the child.
Top 3 types of child custody are granted by Indian courts to parents
1) Physical Custody– The parent who has been granted physical custody is usually the primary guardian and the child lives with the parent. The other parent is usually given visitation rights over the weekend.
2) Legal Custody– Legal Custody means that either parent can make decisions which affect the welfare of the child such as medical treatment, religious practice, and education. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated.
3) Joint Custody – To do away with the concept of primary guardianship, a new concept of joint custody has been evolved which gives both parents legal and physical custody.
There are specific personal laws relating to Child Custody in India. However, there is a general Law -Guardianship and Wards Act, 1890 which supplements the personal laws governing guardianship issues under every religion.
Let’s have a look at this legislation
The Guardians and Wards Act, 1890
According to GWA, 1890, a minor/child is any person who is generally under the age of 18 physically and intellectually imperfect and immature and hence needing someone’s protection. “Guardian” means a person having the care of the person of minor or his property or both; “ward” means a minor for whose property or both there is a guardian. The court must work in the interest of the minor taking into consideration age, sex, religion, the character of the guardian, death of a parent(s), and the relation of the child to the guardian, etc. The minor’s preference may be taken into consideration. The welfare of the child is taken as paramount consideration and here welfare must not be measured by money or physical comfort but the word welfare must be taken in its widest sense that the affection cannot be disregarded.
The Law Commission in its 263rd report held that desire to protect children must be based on a true interpretation of their best interest.
Now let’s have a look at the various personal laws relating to the Child Custody
Child Custody under Hindu Law- Hindu Minority and Guardianship Act 1956
Under the Hindu Minority and Guardianship Act, 1956, the custody of all children below the age of 5 years is given to the mother. The custody of boys and unmarried daughters is given to the father. Custody of illegitimate children is given to the mother first and then the father while the guardianship of a married girl is given to her husband. The Hindu Minority and Guardianship Act, 1956 exists in harmony with the Guardians and Wards Act, 1890.
In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother. The Supreme Court has ruled saying that in such cases the child should not be treated as ‘chattel’. It is only the child’s welfare which is the focal point for consideration.
Child Custody under Muslim Law
In Muslim law, the welfare of the children is given the utmost importance.
Under Muslim personal law, there is a concept called “Hizanat“. In this, the right to a child’s custody is given solely to a mother unless she is seen as an unfit guardian. And this right can be enforced against any person including the father.
But again justifying the welfare of the child, here the mother’s right of child custody is not absolute and exists only if such right is beneficial and in the interest of her children.
Child Custody Under Christian Law
As the Christian law has no specific mention of the child custody rights, the Indian Divorce Act, 1869, becomes applicable for all matters pertaining to Christian children and their guardianship. As per Section 41 of this said Act, the courts have the right to pass orders as to the custody, education, and maintenance of Christian children.
Child Custody Under Parsi Law
The Parsis also do not have any specific laws pertaining to child custody. Hence all such issues are addressed by the Guardians and Wards Act, 1890. Under the Parsi Marriage and Divorce Act, 1936, the wife can claim for maintenance to support their minor children. Under this Act, the court has to pass an order within 60 days related to custody of Parsi children and their guardianship.
In a recent case, both the parents were given custody for sustainable growth of the 12-year-old boy. The court directed the minor to be in the physical custody of the father from January 1 to June 30 and from July 1 to December 31 with his mother. Both the parents were given visitation rights on weekends when the child was with the other parent. The expenditure on maintenance of the child was to be split equally among the parents.