There are several sound reasons to handle divorce as co-operatively and sensibly as possible. But one reason that subdues all others is the child custody battle. Custody for child, when parents divorce implies with whom the child would physically reside and the custodial parent would have the primary responsibility over the emotional, medical and educational needs of the child. The non-custodial parent will have the right of access.
From the general point of view, the court is inclined to offer the right over a child to a mother, who is naturally preferred for the legal custody. However over the years there has been a shift from custody being a “right of a parent” to being the “right of a child”. The paramount welfare of the child is the non-negotiable principle, which decides who best will serve the emotional, social, medical and educational needs of a child.
In some countries there is an explicit difference between a physical custody and a legal custody. Physical custody means having the child living with you and a legal custody means authority to determine child’s medical care, schooling etc. In India there is no such separate concept of physical and legal custody. However being a secular country, personal laws have different notions of physical child custody.
In Hindu community, Hindu minority and Guardianship Act, 1956 and Guardians and ward Act, 1980 govern the child custody, with HMGA 1956 having overriding effect on GWA 1980. An important provision in HMGA 1956 is Section 13, which states that “welfare of the child is to be a paramount consideration”. With this clause the favourable clause 19 of GWA 1980 towards father for child custody has been overridden. This means that child custody can be more easily granted to women in interest of child’s welfare.
Section 6(a) of HMGA 1956 states that a minor child, under the age of 5, is committed to the custody of mother. This legal trend might seem biased towards the mother, but it is not impossible for a father to claim custody for child. The Act puts onus on the father to prove cogent reasons, indicating that livelihood and welfare of the child being jeopardized if the custody is retained by the mother.
Section 26 of Hindu marriage Act, 1955 deals with custody of children with both parents following Hindu religion. Under this Act, the court can pass interim orders and make provisions when and where they feel the need, with careful consideration to maintenance and welfare of the child, after being proportionate with child’s wishes. The same principle is applied in section 38 of Special marriage Act, 1954.
Section 41 of the Divorce Act, 1869, lays down power with court to make orders as to custody of children in suit of separation.
In Muslim law, a mother is considered as first priority w.r.t child custody and if mother is disqualified under their personal laws, custody is given to the father. Mother’s right to child custody is known as right of Hizanat and can be enforced against the father or any other person.
Among Hanafis, a mother’s right over her son terminates on latter’s completing the age of 7 years. The Shias hold that mother is entitled to custody of her son till he is weaned. Among the malikis, the mother’s right of Hizanat continues till he reaches puberty. Mother’s right over daughter remains till they attain puberty and get married.
Father’s right of Hizanat comes into picture, when mother’s right of Hizanat is completed or in the absence of mother. The father then has the right to appoint testamentary guardian with custody of minor child.
Christian law per-se does not have any specific provision for custody and the issues are resolved by Indian Divorce Act, 1869 which applies to all the religion of the country. Under this Act, the court passes interim orders for maintenance of the minor child, as it deem fit, altering the main decree of the suit to ensure proper care and maintenance of the child.