What Exactly does Child Custody Means?
According to Dictionary, Custody is the legal right to keep and look after a child, especially the right given to a child's mother or father when they get divorced.
The custody of a child after the divorce or the judicial separation of the parents is a burning issue and is one of the most important issues on which the court must decide.
The family courts while debating the issue of custody, base their decision on the “best interests” Doctrine of the child (Juvenile Justice (Care and Protection of Children) Act, 2015) in question.
Regarding Child Custody Hon’ble Mr. Justice Vinod Prasad said “Custody of the child shall be handed over to the person who fosters him or her with care, love and affection”.
There is a total of four types of Child Custody available in Indian Law:
1. Physical custody of the child
Physical Custody means that the child will be under the guardianship of the parent. The other parent shall be given due permission so that they can meet with the child from time to time according to the court's decision.
This form of custody is mostly in India because the child gets all the benefits of family and has the best upbringing possible.
2. Joint custody
In simple language, Joint custody means the custody rights are vested in both the parents.
Out of four Child custody forms, joint custody happens to be one of the best solutions in the custody battle primarily. There are two reasons:
- No parent feels deprived of their child. That is the reason the grant of joint custody rights ensures that both the parents play a significant part in the growth of the child’s life.
- The child gets the love and affection of both the parents equally. It does not matter the arrangements, the child who has gone through the separation of his or her parents is left with a psychological scar.
By this joint arrangement, the child receives the attention of both his parents equally.
3. Third-party custody
Third-party custody means the custodial right lies with neither of the biological parents. If both the Parties are incapable of raising a child and to let anyone of them have the rights of the child would not be beneficial for the child. In that case, a third party who is in some way related to the child’s parents is given the right to be the guardian of the child for the beneficiary of the child.
4. Sole custody
In the case of sole custody, the custody of the child relies on one biological parent.
The other parent is completely kept away from the child. In this case, another parent is not given any right over the child due to the previous history of abusive behavior, the bad atmosphere at home or are incapable of being beneficial to the child.
Custody rights of a child
The custody of the child can be claimed by either the mother or the father of a child after the divorce or the judicial separation taken from the Court.
Who Can Claim It?
In the situations where both of the parents are deemed to be unfit for custody or both of them are deceased, the grandparents of the child from the maternal or the paternal side or some other relative of the separated family can claim custodial rights. In most cases, the court appoints a third person as a guardian to ensure proper take care and safety of the child.
Custody rights under different laws in India are as follows:
1. Custodial rights under Hindu law
• Section 26 of the Hindu Marriage Act, 1955
The provisions of Section 26 of the Hindu Marriage Act is talks about the maintenance, caring, and education of the child, and only when both the parents follow the Hindu religion, does the custody of the child gets validated. Under this law, the orders can be passed at any juncture of time, concerning the maintenance of the child and dispose of the pending decree within 60 days from the date of service of notice.
• Section 38 of the Special Marriage Act, 1954
The provision deals with the custody of the child in case both the parents belong to different religions or have undertaken a court marriage. Under this act, the orders can be passed at any juncture of time, concerning the maintenance of the child and the pending decree within 60 days from the date of service of notice.
• Hindu minority and Guardianship Act, 1956
The provisions of this Act talk about the custodial rights of only biological parents to seek the custody of their minor child provided that he/she is a Hindu.
2. Custody of child under Muslim law
According to Muslim law, only the mother has the right to seek his/her child custody as per the Right of Hizanat. If the mother of a child is found guilty of any misconduct, in that case, she cannot claim custodial rights of the child.
The custody of a child under Muslim law is with the mother until the child has attained the age of 7 years for a boy and in the case of a girl until she has attained the age of puberty or majority.
3. Custody of child under Christian law
According to a Christian Law, the custody rights are dealt with under the regulations set in the Divorce Petition Act, 1869, as per the provisions of Section 41, and in addition to this law, Section 42 and 43 of the same Act hold the right to decide upon the child’s custody after the judgment concerning separation has been passed by the Court.
4. Custody under Parsi law
In the Parsi Law, the custodial rights are managed by the Guardians and Wards Act, 1890. The primary aim of this Act is the betterment of the child and has also multiple legal provisions to ensure the same.
It is already a nightmare for parents who are beleaguered with separation. The custody of a child remains one of the most sensitive issues caused due to the separation proceedings of the parents and it affects the mental health of a Child. There has been a marked controversy between the various religious laws and the uniform legislation enacted by the State from time to time. However, the controversy regarding the various viewpoints of law should not compromise and affect the future of the child and also make sure to maintain a healthy environment for the child. Hence, any hindrance caused by law on this front should be addressed and then rectified for the betterment of the child.
|Laws||The distinction between the rights of Father and Mother||Child Consent|
|Hindu Law||Father treated as the natural guardian||The child has a say in the granting of custody|
|Muslim Law||Father treated as the natural guardian||The child’s opinion is considered|
|Christian Law||No such distinction||The child’s opinion is given a considerable value if he is able to understand the situation|
|Parsi Law||No such distinction||The child’s opinion is given a considerable value if he is able to understand the situation|
* To read this article in Hindi
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