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Power of Matrimonial courts to Grant Child Custody in India
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In the matrimonial proceedings the question of custody, education and maintenance of children also crop up. The courts are asked upon to decide in respect of custody of children during the pendency of trial. The question of custody of children is an important matter which affects the children and parents emotionally, economically and socially. The matrimonial courts have been empowered under the matrimonial enactments to decide such questions and pass orders relating to custody, education and maintenance of the children from time to time. Such orders can be modified, revoked or changed. The courts exercised jurisdiction over children only if it has jurisdiction in the main petition. If the matrimonial proceedings are dismissed by the court, proceedings relating to children terminate automatically. A provision or order may be made by the court for the custody, maintenance and education; of minor children before passing of a decree or in the decree itself or even if a decree has been passed. Passing of a decree in the main proceeding does not put an end to the courts jurisdiction as it retains the power to pass orders in respect of custody, maintenance and education of the children even after passing such decree. The guiding principle for passing such orders is but approval things "just and proper" the interpretation which has been given to these words "welfare of the minor". Though the principle of welfare of the minor is the paramount consideration but the court can also take consideration, the wishes of the children also. To ascertain the benefit of the the court has to consider all other factors such as age, sex or wishes of the child. Thus, the power conferred upon the matrimonial courts is of considerable importance which has to be exercised cautiously.
Section 26 of Hindu Marriage Act, 1955 deals with Custody of ChildrenIn any proceeding under this Act, the court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible and may, after the decree, upon application by petition for the purposes make from time-to-time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending and the court may also from time-to-time revoke, suspend or vary any such orders and provisions previously made:
Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.
Section 38 of the Special Marriage Act, 1954 deals with Custody of Children (Court marriage or couple from different faith)In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.
Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.
Section 41 of the Divorce Act, 1869 deals with Custody of Children for couple following Christian faithPower to make orders as to custody of children in suit for separation- In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.
Section 42. Power to make such orders after decree.-The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time-to-time, all such orders and provisions, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending.
Section 43. Power to make orders as to custody of children in suits for dissolution of nullity.-In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in a District Court, the Court may, from time-to-time before making its decree, make such interim orders as it may deem proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the Court.
Since the custody of the minor is involved, the courts have taken the view that it should also take into consideration the provisions of the Hindu Minority and Guardianship Act, 1956 and particularly, section 6 of the Act which reads as under:
Section 6 of the Natural Guardians of a Hindu Minor:-
guardian of a Hindu minor, in respect of the minor's person as well as in
respect of the minor's property (excluding his or her undivided interests
in joint family property), are-
File for Child Custody in Delhi or NCR
Custody under Hindu, Muslim, Christian and Parsi Law:
In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated.
Child Custody & Guardianship: Indian Scenario Compared to the West:
Child custody and guardianship are legal terms which are sometimes used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent's duty to care for the child
Guardianship Under Hindu, Muslim, Christian And Parsi Laws:
Under the Hindu Minority and Guardianship Act, 1956, S. 4(b), minor means a person who has not completed the age of eighteen years. A minor is considered to be a person who is physically and intellectually imperfect and immature and hence needs someone's protection.
Hindu Minority and Guardianship Act,1956 | Child Custody Judgments | Guardianship Judgments
Status of Children born in Live in Relationships:
clear laws should be made and amendments to ambiguous terms in present laws must be made to grant clarity on the status and rights of children born in a live in relationship. This will ensure uniformity and help establish emotional, mental and physical security for such a child.
Adoption - Under Hindu, Muslim, Christian And Parsi Laws:
Hindu Law, Muslim Law and the Guardians and Wards Act, 1890 are three distinct legal systems which are prevalent. A guardian may be a natural guardian, testamentary guardian or a guardian appointed by the court. In deciding the question of guardianship, two distinct things have to be taken into account - person of the minor and his property. Often the same person is not entrusted with both.
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