Skip to main content

Laws of Child Custody In India

 LAWS OF CHILD CUSTODY IN INDIA

INTRODUCTION:

Child custody after separation of the parents is a major issue. Issue of child’s custody comes after the completing the divorce process and it is the most important issue on which the court should give a decision. Custody of a child refers to the right given to a parent by the court to take care of the child if the child is less than 18 years of age. The parent with whom the custodial right is vested, that parent is supposed to look after financial security, maintenance of the child with respect to providing good lifestyle, healthcare, emotional, physical and medical development. The other parent is given with the right to access and meet the child. The family courts while arguing on the issue of custody, give their decision on the best interest of the child in question.

FACTORS CONTRIBUTING TO THE WELFARE OF A CHILD:

When the family courts are handing over the custodial rights to of the parents, the decision depends on the surety of the best possible future of the child. The welfare is decided on 4 different parameters. They are discussed below:

  • Proper and ethical upbringing

  • Assurance of safety of the child

  • Impacting quality education

  • The guardian with whom the custodial rights is vested must be financially stable.


RIGHTS OF PARENTS OVER MINOR CHILD AFTER DIVORCE 

In the case of a minor child, both parents have equal rights over on the child after getting separated. Equal rights here mean to the right to custody of the child. The main piece of legislation that has provisions to address the issue is the Guardian and Ward Act, 1890. This is primarily secular in nature. The provisions of this act are often opposite to the provisions that deal with personal laws. The decision of the family court is important in this case because while pronouncing its verdict, the court focuses upon creating a balance between the two. The custody of the child is given to any one parent at a time on the factors mentioned above. The other parent is given the right to be in touch. The right to access is a potent right in the hand of the other parent because it assures that the parent with the custodial right is really taking good care of the child. The provision of the right to access  assures that the child gets the love and affection of both the parents.


FORMS OF CUSTODY AVAILABLE IN INDIA

There are 4 forms of custodial rights in India. They are as follows:


Physical custody of the child: When a parent is given the decree of physical custody, it means that the child will be under the guardianship of that parent and the other parent shall will be given permission so that they can meet the child time to time.

This type of custody is the most prevalent method to assure that the child gets all the benefits of the family and has the best upbringing possible. The environment around the child is such that child should not feel deprived in any manner because of the separation of parents.

Awarding to joint custody: In case of joint custody, the rights of custody are vested with both the parents which lets them to keep the child turn by turn. Joint custody is contrary to the common belief, this does not mean that the divorced couple share the same roof even after courts announced their divorce. This concept of joint custody was one of the best solutions in the custody battle primarily because of two reasons. 

The first reason being that no parent feels deprived. No matter the term, custody rights cannot be compared with access rights. That’s the reason granting of joint custody guarantees both the parents play a significant part in the growth of child’s life. 

The second reason is that the child gets to experience the affection of both parents equally. Separation of a child’s parents is a biggest scar in a child’s life. This arrangements lets the child get the attention of both parents equally.


Third Party Custody: As the name suggests, the custodial right is not given to neither of the biological parents. This is because the court deems that both parents are not capable of raising a child and to give any parent the right of custody of the child will not be benefit the child. A third party is some way related to the parents is given the right to be guardian of the child.


Sole Custody: In case of sole custody, the whole right of custody of child is with one biological parent. The other parent is kept away completely. The other parent is not given any right over the child. This is because of the previous history or past happenings of abusive behaviour or if they are incapable of being beneficial to the child in any possible way.


DETERMINATION OF THE KIND OF CUSTODY TO BE GRANTED 

Until the court gives the final order based on the above discussed conditions, the parent who is vested with the custody their kid gets the physical custody as well as the legal custody of the child. Any other type of custody or any other arrangement will be made clear by the court and the clarification shall be conveyed to both the parents.


CONCLUSION:

The custody of a child stays with one of most sensitive and complex issues that arouse as a result of separation proceedings of parents. The custody, as seen, is guided mainly by middle ground that is set up by the judges in this aspect. There has been a controversy between the different religious laws and uniform legislation enacted by the state. But the controversy regarding various angles of laws should not affect the future of the child in any manner. It should be kept in mind that welfare of the child along with guaranteed social security is the prime motive behind the custody of a child. 
Labels:

Comments

Post a Comment

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B
Post a Comment
Read more

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske
1 comment
Read more

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree
Post a Comment
Read more