Monday, 7 February 2022

Child Custody



The custody of a child after the separation of the parents is a burning issue. Often movies and books have quoted the amount of trauma that a child has to go through to see the bitter process of their parents separating. The issue of the custody of a child arises after the completion of the divorce or the judicial separation and is one of the most important issues on which the court must decide.

Custody of a child refers to the right given to a parent by the court to look after the child (if the child is less than 18 years of age). The parent in whom the custodial right is vested is supposed to look after the financial security, maintenance of the child with regard to proper lifestyle, healthcare, emotional, physical and medical development. The other parent is provided with the only right to access and meet the child. The family courts while debating on the issue of custody, base their decision on the best interests of the child in question


  In the case of a minor child, both the parents have equal rights over the child after divorce. Here, equal right refers to the right to the custody of the child. However, the family court gets the last say in this regard. The central piece of legislation having provisions to address the issue is the Guardian and Ward Act, enacted in 1890 which is primarily secular in nature. However, the provisions of this Act are often in stark contrast to the provisions of the statutes dealing with personal laws. The oversight of the family court is important in this regard because while pronouncing its verdict, the court aims to strike a balance between the two. The custody of the child is given to any one parent at a time based on the previous factors mentioned above. The other parent is given the right to access to stay in touch. The right to access is a potent right in the hand of the other parent because it makes sure that the parent with the custodial right actually takes care of the child. The conditions of the visiting rights are however set by the court. The provision of the access rights ensures that the child gets the love and affection of both the parents.


Until the court pronounces a final order based on the above stipulated conditions, the parent who is vested with the custody of the child ends up with the physical custody as well as the legal custody of the child. Any other form of custody or any other arrangement will be made clear by the court and the clarification shall be informed to both the parents.


The custody of the child can be claimed by either the mother or the father after the divorce or the judicial separation. However, in situations where both of the parents are deemed unfit for custody or both of them are deceased, the grandparents from the maternal or the paternal side or some other relative of the separated family can claim the custody rights of the child. In most cases, the court appoints a third person as a guardian in order to ensure proper safety of the child.  


The custody battle for the child is an intense and a delicate issue for the court. When presented with the question, the apex court of India, i.e., the Supreme Court and other courts as well have held that the only criteria to adjudge the vesting of custody rights is the benefit of the child.  

As per the provisions of both the Hindu Law and the secular law, the custody of a child below five years of age is generally given to a mother. In the cases of older boys, the fathers are generally given the custody while the mother is awarded the custody of older girls. During the process of determining the decision of whom to vest the custodial rights of the child, the child’s views are also taken into consideration if the child is above nine years. Since the main criteria is the well-being of the child, mothers who have been abusive in the past are not given custody rights after separation.


HINDU MARIRAGE ACT, 1955: the provision stipulated under section 26 of the Hindu Marriage Act addresses the education and the maintenance of the child only when both the parents are followers of the Hindu religion.

SPECIAL MARRIAGE ACT, 1954: the provision deals with the custodial rights in case of the parents belonging to different religions. 

HINDU MINORITY AND GUARDIANSHIP ACT, 1956: the provision does not take into consideration the third party custodial rights. The provisions of this act talks about the custodial rights between te biological parents only and subject to the fact they are Hindu. 

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