This article describes the custody rights of a child.
Who Can Claim Custody of A Child?
- The custody of a child can be claimed either by the mother or the father.
- The maternal or paternal grandparents or any other relatives can claim custody if the biological parent of the child is deceased or not in the scenario due to the operation of some other laws for the time being in force.
Who Has The Priority Claim To The Custody of A Child?
The Hon’ble Supreme court of India has laid down that custody is only for the consideration is the welfare of the child, irrespective of the claims of the parties to the custody of the minor.
Who Has the custodial Right On Minor Child?
Father and Mother both having an equal right to the custody of a child. However, who gets the custody of a child is still a question which the court has the exclusive jurisdiction to determine.
Moreover, when it comes to personal laws and statutes there are several conflicting aspects. The Guardian and Ward Act, 1890 which said that the welfare of the child is the paramount importance, and thereby the court of competent jurisdiction endeavors to strikes a balance between the two. And because the custody of the children is given to one parent that doesn’t imply that the other parent cannot be in contact or see the child. The courts in India make sure that the child gets the attention and affection of both the parents. The court gives the other parent visitation rights of which the conditions are determined by the court.
Modes of child custody are available in India.
Physical custody of the child
Physical custody awarded a decree of physical custody to a parent, that the child will be under the guardianship of the parent and the other parent shall be given due permission so that they can meet with the child from time to time. The main reason behind such custody is to give a better life to the child in a safe and fulfilling environment and also the child is not deprived of the affection of the other parent.
The joint custody rights are vested in both the parents allowing them to keep the child in turns.be it noted that it does not imply that both the parents have to live together because of the child. Joint custody means that both the parents will take care of the child turn by turn keeping the child in their custody. The rotation of the child between parents may vary from certain days or a week or even for a month. The main advantage of this type of custody is
- That no parent feels deprived.
- That the child gets the affection of both the parents equally.
Legal Custody or Third-party custody
In this case, the custodial right lies with neither of the biological parents. It means that the parents are granted legal custody to some other person and they can make every decision for the child like education, medical, etc. The main purpose of this type of custody is when the court find that both the parents are incapable of raising a child.
In this type of custody, the entire right regarding child custody relies upon one biological parent. The other parent is completely kept away and is not given any right over the child due to the previous history of abusive behavior, or is incapable of being beneficial to the child for some reason.
Custodial rights under Hindu law
Under Hindu Law, Section 26 of Hindu Marriage Act 1955, Section 38 of Special Marriage Act 1954, and Hindu Minority and Guardianship Act 1956 deals with the rules and regulations set for seeking child custody.
- Section 6(a) of HMGA 1956, the custody of the child under the age of five is usually given to the mother.
- In most cases, fathers get custody of the older boys and mothers of the older girls.
- Last but not least, Minor’s interest is the main criteria and the choice of the child above the age of nine is considered by the court.
Custodial rights Under Muslim Law
- Only the mother has the right to seek his/her child custody as per the Right of Hizanat until she is not found guilty of any misconduct.
- The custody of a child is with the mother until the child has attained the age of 7 years for a male child, and for the female child until the age, she has attained the age of puberty.
- The custody of a child is with the mother until the child has attained the age of 7 years for a male child, and for the female child until the age, she has attained the age of puberty. because the father is considered to be the natural guardian.
Custodial rights Under Christian Law
Christian law does not have any specific provision for the custody and the issues are resolved by the Indian Divorce Act, 1869, The child’s welfare plays a vital role as the parents have to prove themselves capable of taking the responsibility of maintaining the child. The court may deny custody in case it is not satisfied with the abilities of the parents.
Custodial rights Parsi law
The custody rights are managed by the Guardians and Wards Act, 1890. The Act primarily aims at the betterment of the child and has multiple legal provisions to ensure the same.