The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
CHILD CUSTODY
(under Hindu Law)
INTRODUCTION
When a couple gets divorced, it becomes crucial to determine who takes care of the children born out of their wedlock. Child custody is determining that with which parent would the child reside and who will take all his/her decisions. This article will explore various statutes and laws regarding the Child Custody of divorced parents, legal procedures, types of custody granted to the parents, factors in determining the custody and other related matters.
Since the child already goes through a traumatic experience on separation of his/her parents, the judiciary focuses on the maximum welfare of the child. It means that the child’s preference and relationship with each parent would be considered while keeping in mind the wishes of the parents, the mental and physical health of the parent, the ability of the parent to meet the child’s needs and the age of the child. Like, if one of the parents has a physical or mental disability, then custody would be granted to the other parent with visitation rights with the disabled parent and if the age of the child is below 5 years then custody is generally favoured towards the mother.
CHILD CUSTODY LAWS IN INDIA
Hindu Marriage Act, 1955:
Section 26 of HMA states that the court can make provisions regarding the custody, maintenance and education of the minor children considering their wishes.
Hindu Minority and Guardianship Act, 1956:
Earlier, fathers were considered as the primary and natural guardians of the child whereas mothers were given the secondary role so, the father’s authority as the main guardian was unchallenged. This belief has also been referred to in Section 6(a) of the Act which states that in the case of a boy or an unmarried girl, the father is the natural guardian and after him comes the mother. However, Section 13 of this act also suggests that the welfare of the child would be the utmost priority.
In the case of Geeta Hariharan v. Reserve Bank of India, the Supreme Court held that the mother can have the right to claim custody of the minor child in case of the father’s death or his absence.
TYPES OF CUSTODY
IMPORTANT FACTORS IN DETERMINING THE CUSTODY
Paramount consideration: In child custody decisions, the welfare of the child is given the most importance. The desire of the child, the environment of upbringing, and the parent’s ability to take care of the child are some of the crucial factors. The Hindu Minority and Guardianship Act, 1956 aims not only to protect just physical custody but also to protect the child’s needs, physical/mental health, maintenance and education. The “welfare principle” aims at the child’s growth and development and also, children’s welfare is considered above the rights of the parents.
Moreover, the age, sex and religion of the minor are also considered. Also, the courts prefer to keep children together and award custody of both together when the issue of custody involves two or more siblings.
The ability of the parent: the parent who has financial resources and is mentally and physically sound is favoured. Even the parent’s education, parenting styles and background are taken into account. This helps in estimating who can provide better care to the child.
Furthermore, if the court believes that the parents cannot or do not want to take care of the child properly, it can give custody to close family members. If even the close family members can't take care of the child well, the court might give custody to someone else who is capable, as decided by the court.
There are also certain reasons by which the court can deny custody like drug or alcohol abuse, child abuse, incarceration (imprisonment), violent mental illness, a person who has renounced the world and does not believe in materialistic pleasures (in order to achieve nirvana), a person who has ceased to be a Hindu or converted to any other religion.
Additionally, when the court decides who should take care of the child, the parent who doesn't get custody can still be allowed to visit the child. These visiting rights can be given temporarily, and the court can change them if the situation changes.
PROCEDURE TO FILE FOR CHILD CUSTODY
CONCLUSION
In conclusion, child custody is decided considering parental rights and the paramount consideration of the child's welfare. As explored in this article, the legal frameworks, such as Section 26 of the Hindu Marriage Act and Section 6(a) of the Hindu Minority and Guardianship Act, provide guidelines for courts to make their decision. The evolving principles of equal parental rights post-divorce, and the child's own preferences all contribute to the decision-making process.
It is crucial to recognize that child custody matters extend beyond legalities as they also impact the emotional and psychological well-being of the child. Courts, guided by the best interests of the child, play an important role in ensuring a fair decision.
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