merlynlawfirm1 (3)

1
Law of Child Custody in INDIA
2
Introduction

• The welfare of a child is of paramount importance
  and consideration. The breakdown of a marriage
  between spouses causes the child to be inevitably
  affected by such disintegration. The principles
  regarding the custody and welfare of the child
  are well-settled. The parent who gets the
  custodial rights of the child vested in them is
  decided upon various factors such as the ethical
  upbringing of the child, economic well-being of
  the parent, the exposure the child will have
  towards education etc. Under Indian law, both
  parents have an equal right in seeking the
  custody of the child and it is left to the Courts
  to decide which parents would have to primarily
  take care of the child, while the other parent
  would gain visitation rights. Accordingly, the
  concept of shared parentage has grown, which is
  the new concept in the custody system. In this
  concept both the parents will participate in
  upbringing of the child. The Law Commission of
  India is also concerned about the issue of
  adopting a shared parenting system in India and
  submitted its 257th Report along with the
  proposed amendment. In India, at present the
  custody of children is determined by two laws
  the Guardians and Wards Act, 1890 and the Hindu
  Minority and Guardianship Act, 1956. Both the
  Acts are silent on joint custody or shared
  parenting for children.

3
LEGISLATIONS GOVERNING CHILD CUSTODY IN INDIA

• The Preamble to the Constitution of India affirms
  that India being a secular nation follows an
  array of different religions and the law has been
  accommodative of such diversity. Thus, every
  religion with their personal set of laws
  prescribes the procedure and process under which
  the custody of the child can be claimed.
• Under Hindu law, the custody of the child has
  been dealt with under the Hindu Marriage Act 1955
  as well as the Hindu Minority and Guardianship
  Act 1956. Section 26 of the Hindu Marriage Act,
  1955 it has been prescribed that under the
  condition that both parents follow the Hindu
  religion, they can claim the custody of the
  child. This section specifically empowers the
  Court to pass orders with respect to the
  maintenance, custody and primarily the education
  of the child during the pendency of proceedings
  between the parents of such child. Under the
  Hindu Minority and Guardianship Act, 1956
  pursuant to the case of Gita Hariharan v. Reserve
  Bank of India, the Court held that both the
  mother and the father could be termed as the
  natural guardian of the child when Section 6(a)
  of the Act was challenged as violative of Article
  14 of the Indian Constitution. Further, Section
  13 of the Act while deciding the guardianship of
  a Hindu minor, it was deemed essential to keep in
  mind that the welfare of the minor would be of
  paramount consideration.

4

• Islamic law prescribes the right of hizanat which
  gives the mother of the child the right to his or
  her custody so long as she is not disqualified.
  Such a right is recognized under law for the
  well-being of the child and for no other reason
  thus making it not an absolute right in the hands
  of the mother. Muslim law, however makes a
  distinction between the mothers right over her
  son and daughter. For a son, among the Hanafis it
  was viewed that the mother has her right of
  hizanat until the age of seven while the Shia
  were of the opinion that until the weaning age,
  that is around two years old, the mother
  possesses such right. The Malikis however,
  believe that the mother has such a right until
  the son attains puberty. For a daughter, the
  Hanafis believed that the mother had the right of
  hizanat until she hits puberty while the Shafiis
  and Malikis believe that the mother possesses
  such right until she gets married.

5

• Christian law does not provide for a prescribed
  set of laws for child custody in the Christian
  laws but the issues are sorted by Section 41 of
  the Indian Divorce Act, 1869. Reforms and laws
  set under Section 41 of the Divorce Act 1869. In
  addition to this, Section 42 and 43 of the same
  acts hold the right to decide upon the childs
  custody once the judgment with respect to
  separation or divorce has been passed. The
  couples, however, have an option of choosing to
  be protected under the Special Marriages Act.
  Section 38 of Special Marriages Act, 1954
  validates the childs custody in cases where the
  parents belong to different religions or have
  taken a court marriage and explains the powers of
  the court over providing judicial custody.
• Under Section 49 of the Parsi Marriage and
  Divorce Act, 1936 and Section 41 of the Indian
  Divorce Act, 1869, Courts are authorized to issue
  interim orders for custody, maintenance and
  education of minor children in any proceeding
  under these Acts. Guardianship for Parsi and
  Christian children is governed by the Guardians
  and Wards, Act, 1890.

6
Welfare Principle

• While taking a decision regarding custody or
  other issues pertaining to a child, welfare of
  the child is of paramount consideration. It is
  not the welfare of the father, nor the welfare of
  the mother, that is the paramount consideration
  for the court. The word welfare used in Section
  13 of the Hindu Minority and Guardianship Act,
  1956 has to be construed literally and must be
  taken in its widest sense. The moral and ethical
  welfare of the child must also weigh with the
  court as well as its physical well-being. Though
  the provisions of the special statutes which
  govern the rights of the parents or guardians may
  be taken into consideration, there is nothing
  which can stand in the way of the court
  exercising its parens patriae jurisdiction
  arising in such cases, Gaurav Nagpal v. Sumedha
  Nagpal.

7

• The welfare principle is aimed at serving twin
  objectives which were laid in the case of Vivek
  Singh v. Romani Singh. In the first instance, it
  is to ensure that the child grows and develops in
  the best environment. The best interest of the
  child has been placed at the vanguard of
  family/custody disputes according to the optimal
  growth and development of the child and has
  primacy over other considerations. This right of
  the child is also based on individual dignity.
  The second justification behind the welfare
  principle is the public interest that stands
  served with the optimal growth of the children.
  Child-centric human rights jurisprudence that has
  evolved over a period of time is founded on the
  principle that public good demands proper growth
  of the child, who is the future of the nation.

8

• Before deciding the issue as to whether the
  custody should be given to the mother or the
  father or partially to one and partially to the
  other, the High Court must (a) take into account
  the wishes of the child concerned, and (b) assess
  the psychological impact, if any, on the change
  in custody after obtaining the opinion of a child
  psychiatrist or a child welfare worker. All this
  must be done in addition to ascertaining the
  comparative material welfare that the
  child/children may enjoy with either parent.

9
Considerations while granting custody of the
child

• The issue of Child Custody crops up during
  divorce proceedings or judicial separation it
  becomes an important issue to be decided by the
  courts. It refers to the process of controlling,
  caring and maintenance of the child less than 18
  years of age by the custodial parent under set
  parameters such as financial security,
  understanding with the child, lifestyle etc. The
  prime right of nurturing the child with respect
  to education, development, medical, emotional,
  physical etc. lies with the custodial parent
  while the non-custodial parent holds the right to
  access and meet the child. The custody of a child
  remains one of the most sensitive and convoluted
  issues caused due to the separation proceedings
  of the parents. The custody, as seen, is guided
  mainly by the middle ground established by the
  judges in this regard. There has been a marked
  controversy between the various religious laws
  and the uniform legislation enacted by the State.
  However, the controversy regarding the various
  viewpoints of law should not compromise the
  future of the child. While resolving various
  pieces of legislation, it should be remembered
  that the welfare of the child along with assured
  social security is the prime motive behind the
  custody of a child. The parent in whom the
  custodial right is vested is supposed to look
  after the financial security, maintenance of the
  child with regard to proper lifestyle,
  healthcare, emotional, physical and medical
  development. The other parent is provided with
  the only right to access and meet the child. The
  family courts, while debating on the issue of
  custody, base their decision on the best
  interests of the child in question.

10
Conclusion

• The Family Courts while deciding on this need to
  keep the best interests of the child as of
  paramount importance. 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. In
  innumerable cases, both the parents are provided
  with access to the child, but the physical
  custody of the child is usually granted to one
  parent.

11
THANK YOU