Child Custody Laws In India – A Brief Legal Information

child custody laws in india

Disputes regarding child custody are seen in almost all courts. The issue of child custody is considered to be highly sensitive and emotional at the same time because it is related to the parents of their children. If a marriage breaks down and ends up in separation of a couple, the person(s) who suffers the most is the child or children born out of the marriage. In simple terminology, child custody means a person to take care of a child. The issue of child custody is seen in most divorce cases, in which parents get custody of the child, the child is placed under their care and guidance.

Laws governing the custody of a child vary by religion because child custody laws in India are governed by individual laws after the child’s parents. Although a similar law, namely the Guardian and Ward, Act 1890 is in force, private laws have a major impact when determining cases of child abuse. The Indian Law, while keeping in mind the parents’ right to the custody of a child, holds the welfare of the child as the most important factor of consideration when deciding upon who gets the custody of a minor child. The custody of child is determined under the follow laws:-

  1. The Guardians and Wards Act, 1890.
  2. Hindu Minorities and Guardianship Act, 1956

The most commonly asked question while addressing the issue of child custody is who is eligible to take child custody and who is not entitled to child custody. The above laws have simplified this complex question and have given the person entitled to custody of the child with the circumstances.

The Guardian and Wards Act, 1890, the court of competent jurisdiction strives to strike a balance between the two, all the while holding the welfare of the child as the paramount importance. However, just because the custody of a minor has been awarded to one parent, it does not mean that the other parent cannot see or be in contact with the child. The courts in India are very strict to ensure that a child gets the affection of both the parents. The other parent gets visitation rights, the conditions of which are determined by the court.

In the case of child custody, there are different types of custody, which can be given to parents by Indian courts-

  1. Physical custody of the child– The physical custody of the child means that the child will be with one of the parents, who has been given physical custody while the other will be given the rights to visit. The parent who has physical custody of the child is usually the primary guardian.
  2. Legal Custody of a Child – In legal custody, parents have the right to make important decisions regarding educational and religious upbringing, financial support, and medical care that affect the welfare of the child. This decision is usually shared between parents, and the expense and maintenance is borne by both parents.
  3. Joint custody of the child– In case of joint custody, both parents have the same physical and legal custody. Although there are no legal provisions on this, the judiciary is taking positive steps to bring joint custody in India. Through this, children can have the benefit of both as active parents in their lives, thus, removing the concept of primary guardianship as well.

According to Hindu Minorities and Guardianship Act, 1956, the following people have the right to custody of a child.

The child’s mother also has the right

  • When the child is less than 5 years old, only the mother of the child can give proper support to the child physically and emotionally till this age.
  • The mother of a child can get custody of the child even if their children are under 18 years of age and above 5 years and the child’s father has died, however, if the child’s father is alive then Considered natural guardian.
  • When a child is unlawful, custody of the child is given to the mother.

Custody of a child will be given to a third person When the parents of the child are unwilling to take custody of the child or the situation is such that the court thinks that it would be better to keep the child in the custody of a third person for the benefit of the child then the court would consider the custody of a child to a third person. In most circumstances, if the children are interested then the grandparents are given custody of a child.

The Supreme Court’s clear order is ‘Welfare of minor to be paramount consolidation’. The consideration of paramount importance in a proceeding for the custody of a minor is the welfare of the child. No legal right, preferential right or any other right holds more importance than the well-being of the child. Any court of law grants custody to that party who can assure the court that the welfare of the child best lies with them.

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