Understanding Child Custody in India: Laws, Rights, and Responsibilities

Introduction:

One of the most difficult components of divorce is child custody. It directly affects the child’s wellbeing as well as the parents and their off spring. For this reason, it’s crucial to comprehend Indian Child Custody laws. Attorney and experts will cover all the information you required regarding child custody in India. This is due to the fact that it is functions better than most divorce settlements in Western nations. In India, the child’s legal rights belong to both parents. This indicates that the mother is entitled to visiting rights as well as the right to nurture and handle the child. While the father is not granted the right to visitation, he does have the equal right to provide a loving environment for his children, so here which parent is best suited to take care of the child is not taken into consideration by the courts when making custody decisions. It might be a tie amongst the two parents in this instance. The way society perceives women as less powerful than men is the source of this custody system. They feel that women should be the ones raising their children while husbands should be working and supporting their families financially hence they would prefer to grant moms legal rights over their offspring.

The way Indian Child Custody Operates:

Indian courts are hesitant to rule on matters pertaining to child welfare and custody. Since child custody is a state-based matter in India, every state has its own laws and guidelines. Many Indians would rather have a joint custody than solo custody. Child custody is not have to be shared by parents; it can be shared or not. If parents are unable to reach a decision regarding joint or non-joint guardianship, the court will determine who will be granted sole custody of the kid.[1] If the parents can’t agree the court will typically ask them both what they want.

Considerations for Determining Child Custody: Indian Child Custody Laws What’s Best for the Child:

The wellbeing and greatest interest of the kid are the most important factors to take into account in child custody proceedings.[2] The court considers a number of variables, including the child’s age, health, needs for education, and general well-being.

• Guardian Fitness: The court evaluates each parent’s capacity to give their child a loving and nurturing environment by looking at their physical and mental health.
• Financial Stability: It is considered whether each parent can afford to provide for their child’s basic necessities, such as health care, education, and general lifestyle.
• Child’s Preference: The court may take into account the child’s preference for which parent they would want to live with in some situations, particularly when the child is older.
• Cultural and Religious Aspects: The court takes into account the parent’s cultural and religious backgrounds and how well these mesh with the child’s upbringing.
• Safety and Consistency: The court recognizes the need of preserving the child’s life’s continuity and safety, particularly with regard to their education, community and social networks.

Conditions under Which a Child is Not Granted Custody:

Even while the law seeks to guarantee equitable and just custody agreements, parents can nevertheless be refused custody n certain situations. Typical causes include the following:

• Domestic Violence or Abuse: A parent may not be granted custody if they have had a record of domestic violence or abuse.
• Substance misuse: A parent’s capacity to get custody may be impacted by ongoing problems with substance misuse, including drugs or alcohol[3].
• Neglect or Abandonment: Custody may be refused to a parent who has shown signs of neglect or desertion toward their kid.
• Mental Health Concerns: Parenting rights may be denied in cases when a child’s mental health is seriously compromised.
• Contempt of Court Orders: It may affect custody judgments if a parent routinely disobey court orders or doesn’t follow visiting arrangements.
• Unstable Living Conditions: If a parent’s living situation is judged to be improper for their child, the court has the authority to evaluate it and reject custody.

Child Custody Configurations available in India:

The Indian Family Court may choose from the following four configurations when granting custody:

• The Physical Custody regarding the Child:

The decree of physical custody granted to one parent stipulates that the child will be within that parent’s guardianship, with the other parent receiving the necessary authorization to see the child on occasion.[4] The most common way to guarantee that the child receives all the advantages of family and receives the finest upbringing possible is through this type of custody. While attempting not to deprive the child of his parents’ affection during his formative years, the environment surrounding the child is made pleasant and enlightening.

• Granting Shared Custody:

When there is joint custody, each parent has the legal right to custody, enabling them to take turns raising the kid. Contrary to popular opinion, shared custody does not require the separated couple to continue living together after the courts have approved their divorce. For two main reasons, joint custody is one of the better options when it comes to custody disputes. The most important thing is that no parent experiences deprivation. Custody rights, whatever their names, are not comparable to access rights. As a result, granting joint custody rights guaranteed that both parents contribute significantly to the development of the kid.[5] The child benefits equally from both parents’ affection, which is the second benefit of joint custody. A youngster who has experiences parental separation, regardless of the circumstances, is left with a psychic scar. The youngster can have equal access to both of his parents’ attention thanks to this configuration.

• Third-party Custody:

As the name implies, neither of the biological parents has the custodial right. This is due to the courts determination that neither parent is capable of rearing a kid and that it would not be in the child’s best interests to grant any parent the child’s rights. The right as to be the guardian of the child is granted to third party who has some sot of the relationship with the parents of the child.

• Sole Custody:

When there is single custody, one biological parent has the exclusive right to the child’s custody[6]. Because the other parent has a history of abuse or is unable to provide the child with any kind of benefits they are kept at a total distance and are not granted any authority over the child.

India’s Child Custody Laws:

• Hindu Minority and Guardianship Act 1956: Both parents are regarded as the minor Hindu Child’s natural guardians under this act. In the event of a disagreement, the court will prioritize the Childs wellbeing when deciding who gets custody.[7] When it comes to children under a specific age, the mother typically has a better chance of obtaining custody, but the court also considers other variables such as the child’s opinion, age and the parent’s capacity to ensure the child’s welfare.
• Guardians and Wards Act, 1890: This law applies to people who practice religions other than Hinduism.[8] The Act gives the court the authority to decide on a parent for the child who is minor and to arrange custody in the child’s best interests.
• Muslim Law: Muslim personal laws, which include the Muslim Personal Law (Shariat) Application Act, 1937, regulate child custody among Muslims. Muslim law grants the mother custody of her male children until a specific age, typically seven years and her female children till they reach puberty[9]. Following this the father might be given custody but once more the welfare of the kid will determine the court’s decision.
• Parsi and Christian Law: Within their respective groups, Christians and Parsis share customs pertaining to child custody.

People Eligible to obtain Child Custody

Either the dad or mom may request custody of their child. When one or both of the parents are not present because of the operation of laws or because they have passed away, the maternal or patriarchal grandparents or additional family members may, solely out of compassion for the kid, acquire custody of the child.[10] The court frequently names a third party as the child’s guardian.

A person who is entitled to Primary Custody of a Child

Regardless of the claims if both sides with regard to the custody of children, the welfare of the minor is the only factor taken into account while determining custody, as the Honorable Supreme Court as well as other Indian courts have stated time and time again. The mother is typically granted custody of a kid within the age of five, both under Hindu and Secular Law. Fathers typically receive custody of the males who are older, while mothers obtain custody of the younger girls. Furthermore, the child’s best interests are the first consideration, and the court takes the child’s preference into account if they are older than nine.

If the father has tied the knot and has children from a second marriage, but the mother is in a worse financial situation than the father, who is granted custody of the minor child?

In these situations, the mother’s lower income does not mean that she should relinquish her guardianship. In this situation, the child’s father is required to pay for the child’s maintenance. Furthermore, the law stipulates that a stepmother’s primary responsibility is to show love and care for her own children, while the father is away at work all day. As a result it is determined that the mother is better custodian for the younger child.

Landmark Cases

In the Historic case of Gita Hariharan v. Reserve Bank of India (1999)[11], the Indian Supreme Court decided that a mother could be named s her child’s natural guardian and that the father’s rights could not take precedence over hers just because of his gender. This ruling defined mother’s role as natural guardians, particularly with regard to custody and acknowledged the mother’s authority to act here child’s legal guardian.

Sanjeev Majoo v. Ruchi Majoo (2011)[12] here the Supreme Court affirmed in this decision that the child’s best interests should always come first when determining custody. The court emphasized that the welfare of child must be considered while determining custody, not the parents’ rights.

Madhav Unde v. Dhanwanti Joshi (1998)[13] The Supreme Court established rules for determining custody in cases of transnational parental abduction in this decision. The court stressed that child’s best interest and welfare must come first, and that matters involving children must be resolved quickly in order to safeguard their rights.

 Abhijut Kndu v. Nil Ratan Kundu & Anr. (2008)[14] The Supreme Court rules in this case that when a kid is very young, courts shouldn’t automatically award custody to father. The court reaffirmed the welfare of the kid principle and made it clear that judgments about custody should be made after a case by case analysis.

Child Custody in Other Personal Laws

Child Custody in Islamic law: Muslim law states that mother has natural custody of child until the child turns seven year old, at which point the father is regarded as the child’s natural guardian. The age restriction is seven years old since puberty coincides with the age at which a person is deemed a major.

Child Custody in Christian Law: The guidelines outlined in Section 41 of the Divorce Act, 1869[15] governs a child’s custodial rights upon the dissolution of a Christian Parent. Since the parents must demonstrate that they are capable of raising the child, the welfare o the child is extremely important. If the court I dissatisfied with the parent’s ability, it may refuse to grant custody.

Child Custody in Parsi Law: The guardians and Wards Act 1890[16] governs custodial rights. The Act’s main goal is to improve children’s lives, and it contains several legislative requirements to make sure of this.

Conclusion

To conclude that has been discussed above, one of the most delicate ad complicated matters resulting from the parents’ divorce processes is child custody. As can be seen, the judges’ comprise on this matter serves as the primary framework for custody decision. The state’s uniform legislation and the many religious laws have been sharply at odds with one another. However the child’s future shouldn’t be jeopardized by the debate over differing legal perspectives the primary reason for granting custody of a kid is to ensure their welfare and social security, which should be kept in mind when settling various legislative issues. Therefore, any legal obstacles on this front should be examined and then removed.

Reference(s):

[1] Adv. Umapathi Natarajan, What you should know about the child custody laws in India EzyLegal (2021), https://www.ezylegal.in/blogs/what-you-should-know-about-the-child-custody-laws-in-india (last visited Jul 4, 2024).

[2] Pravien Raj, Child custody in India Vakilsearch Blog (2023), https://vakilsearch.com/blog/child-custody-in-india/ (last visited Jul 4, 2024).

[3] Ritu Choudhary, Law relating to custody of children in India Shodhganga@INFLIBNET: Law relating to custody of children in India, https://shodhganga.inflibnet.ac.in:8443/jspui/handle/10603/490601 (last visited Jul 4, 2024).

[4] Https://shodhganga.inflibnet.ac.in/handle/10603/27495, https://shodhganga.inflibnet.ac.in/handle/10603/27495 (last visited Jul 4, 2024).

[5] Child custody evaluations – researchgate, https://www.researchgate.net/publication/319254524_Child_custody_evaluations (last visited Jul 4, 2024).

[6] (PDF) the determination of child custody, https://www.researchgate.net/publication/15277510_The_Determination_of_Child_Custody (last visited Jul 4, 2024).

[7] Drishti Judiciary, Hindu minority and guardianship act 1956 Drishti Judiciary, https://www.drishtijudiciary.com/to-the-point/ttp-hindu-law/hindu-minority-and-guardianship (last visited Jul 4, 2024).

[8] National Commission for Women, http://ncw.nic.in/ncw-cells/legal-cell/new-bills-laws-proposed/legal-amendments-proposed/guardians-and-wards-act-1890 (last visited Jul 4, 2024).

[9] Diva Rai, The muslim personal law (Shariat) act, 1937 iPleaders (2021), https://blog.ipleaders.in/the-muslim-personal-law-shariat-act-1937/ (last visited Jul 4, 2024).

[10] 2954 publications and pdfs in child custody | science topic, https://www.researchgate.net/topic/Child-Custody/publications (last visited Jul 4, 2024).

[11] Githa Hariharan (MS) and another V. Reserve Bank of India and another, Supreme Court of India, judgment, law, Casemine.com, https://www.casemine.com, https://www.casemine.com/judgement/in/5609ad58e4b014971141121c (last visited Jul 4, 2024).

[12] Sanjeev Majoo v. Ruchi Majoo ., Delhi High Court, judgment, law, Casemine.com, https://www.casemine.com, https://www.casemine.com/judgement/in/56090d95e4b014971117a125 (last visited Jul 4, 2024).

[13] Dhanwanti Joshi v. Madhav Unde ., Supreme Court of India, judgment, law, Casemine.com, https://www.casemine.com, https://www.casemine.com/judgement/in/5609ad13e4b014971141077b#0 (last visited Jul 4, 2024).

[14] Nil Ratan Kundu and another V. Abhijit Kundu ., Supreme Court of India, judgment, law, Casemine.com, https://www.casemine.com, https://www.casemine.com/judgement/in/5609ae69e4b0149711413c63 (last visited Jul 4, 2024).

[15] India code: Divorce act, 1869, https://www.indiacode.nic.in/handle/123456789/2280?sam_handle=123456789/1362 (last visited Jul 4, 2024).

[16] The Guardians and Wards Act, 1890, https://lddashboard.legislative.gov.in/sites/default/files/A1890-8.pdf (last visited Jul 4, 2024).