Aishwarya Anita Arakal
Family Matters

Child Custody Laws in India

The laws regarding custody of a minor child take effect when a marriage breaks down and results in the separation of a married couple. The custodial laws in India are closely linked with that of guardianship. Guardianship refers to the bundle of rights and powers an adult acquires in relation to the person and

property of a minor. Custody, on the other hand, is a narrower concept which relates to the upbringing and daily care of the minor. The term “custody” is not defined in any Indian family law legislation, whether secular or religious.[1]

Contents hide

1 Types of custody 1.1 Statutory laws:

1.1.1 Islamic Law:

2 Principles observed in awarding custody:

2.1 Better Financial Resources:

Types of custody

Physical Custody: The child lives with the custodial parent and

the custodial parent is responsible for the welfare and safety of the child.

Joint Physical Custody: The child lives with both the parents for a significant time-period. In such an arrangement, both the parents have equal rights over their child.

Sole Custody: The entire right to live with the child lies only with the custodial parent. This often happens in cases where the other parent is abusive, unstable, violent or incapable.

ThirdParty Custody: Neither of the biological parents have any right on the child. Instead, the child custody is granted to a third party by the court.

Statutory laws:

Guardians and Wards Act, 1890: This Act is a secular law regulating questions of guardianship and custody for all children within the territory of India, irrespective of their religion.
Hindu Law: It is to be noted that the following two Acts discussed under “Hindu Law” are applicable to any person who is a Hindu, Buddhist, Jaina, or Sikh by religion.
Hindu Minority and Guardianship Act, 1956: This Act provides various provisions concerning the matters of guardianship and custody of minor Hindu children. Under this Act, only biological parents, and not step-parents, are given the right to seek the custody of their minor child, if he/she is a Hindu.
Hindu Marriage Act, 1955: Section 26 of the Hindu Marriage Act authorizes courts to pass interim orders in any proceeding under the Act, with respect to custody, maintenance, and education of minor children, in consonance with their wishes. The Section also authorizes courts to revoke, suspend or vary such interim orders passed previously.

Islamic Law:

In Islamic law, the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty. The concept of ‘hizanat’ provides that, of all persons, the mother is the most suited to have the custody of the children up to a certain age, both during the marriage and after its dissolution. A mother cannot be deprived of this right unless she is disqualified because of apostasy or misconduct and her custody is found to be unfavorable to the welfare of the child.
Parsi and Christian Law: As per Section 49 of the Parsi Marriage and Divorce Act, 1936 and Section 41 of the Divorce Act, 1869, courts are authorized to issue interim orders for custody, maintenance, and education of minor children in any proceeding under these Acts.
Special Marriage Act, 1954: Couples who register their marriage under this Act can resort to Section 38 for the custody of the children. Section 38 empowers the District Court to pass interim orders during the pendency of proceedings and make such provisions in the decree as it may seem to it to be just and
proper with respect to the custody, maintenance and
education of minor children, consistent with their wishes wherever possible.

Principles observed in awarding custody:

The Paramount Consideration: The courts while making decisions on custody and other issues relating to a child have held that the “welfare of the child is of paramount consideration”[2] and not that of the father or mother that ought to be given paramount consideration. The term ‘welfare’ is utilized in order to ensure that the child grows and develops in the best environment. Furthermore, the child-centric human rights jurisprudence that has evolved focuses on the principle that “public good demands that proper growth of children, who are the future of the nation”[3].

The desire of the child coupled with the availability of a conducive and appropriate environment for the proper upbringing, together

with the ability and

means of the parent concerned to take care of the child are some of

the relevant factors that are to be take into account.[4].

Better Financial Resources:

Better Financial Resources: Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but “cannot be the sole determining factor for the custody of the child”[5].

Filing of Custody:

Guardians and Wards Act, 1890, Section 9, makes a specific provision with regard to the jurisdiction of the court

to entertain a claim for grant of custody of a minor. The solitary test for determining the jurisdiction of the court under Section 9 is the “ordinary residence” of the minor. The expression used is “where the minor ordinarily resides”.

Section 12, empowers the Court to make orders for temporary custody and protection of the person or property of the minor. The factors that must be keep in mind

while determining the question of guardianship will apply with equal force to the question of interim custody. The strict parameters governing an interim injunction do not have complete applicability in matters of custody.[6].

Where no specific remedy is provided under the Hindu Minority and Guardianship Act, 1956, Section 2 and Section 5(b) of the Act makes the provisions of the Guardians and

Wards Act applicable to such a case. Section 2 makes it clear that the Hindu Minority and

Guardianship Act, 1956 is in addition to the Guardians and Wards Act, 1890.

Visitation Rights:

A visitation order means an order establishing the visiting times for a non-custodial parent with his/her child. Although the non-custodial parent is responsible for the care of the child during visits, visitation differs from

custody because the non-custodial parent and

child do not live together as a family unit. Visitation rights are distinct from custody or interim custody orders. Essentially, they enable the parent who does not have interim custody to be able to meet

the child without removing him/her from the custody of the other parent.[7].

Conclusion:

Custodial matters tend to be messy and children are pull in both directions. Ordinarily, despite the fact that these cases are centr on the child, the child is not a true participant in the process and

does not get to define their best interests before the courts. It thus becomes importantto focus on child rights in cases of parental conflict in order

to ensure the proper welfare of the child

since the child’s psychological balance is affect through the marital disruption.

[1]Reforms in Guardianship & Custody Laws in India, Report No. 257 of the Law Commission of India, May 2015.

[2] Sheoli Hati v. Somnath Das, (2019) 7 SCC 490.

[3]Vivek Singh v. Romani Singh,

[4]Gaytri Bajajv. Jiten Bhalla, (2012) 12 SCC 471.

[5]Mausami Moitra Ganguli v.Jayant Ganguli, (2008) 7 SCC 673

[6]Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654

[7]Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318.