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Child Custody After Divorce

Child custody is a major concern for the divorcing couples. In the case of a minor child, both parents have equal rights over the child's custody of the child with mutual understanding. However, if there is a lack of mutual understanding, then family courts generally decide who will get custody of the child. In this article, we will discuss child custody under Hindu law, Muslim law, and Christian law as well.

Perimeter to decide the custody of the child.

According to the Guardians and Wards Act of 1890, the family court will decide the custody of the child, but it sometimes gets conflicts with personal law, so the family court decides it based on the best interest of the child and his or her welfare. Generally, it goes in favour of the guardian, who is capable of providing a good upbringing for the child.

Case 1
In the case of P.T. Chathu Chettiar vs. Kariat Kunnummal Kanaran on May 31, 1983, it was held by the family court that if the father is alive, and he is fit for the custody of the child in the eyes of the court, then the mother can't claim the guardianship of the child.

Child Custody under Hindu Law

Under Hindu law, the main principle of child custody is based on the welfare of the child. Whoever is more capable of improving the welfare of the child will get custody of the child. The Hindu Minority and Guardianship Act, 1956, deals with the law related to the custody of minor children among Hindus.

When the parents of a minor child separated, the court mainly took the welfare and best interests of the child into consideration; moreover, both of them have equal rights over the custody of the child. The court ensure the child's emotional, physical, and educational expenses are met.

Other factors that might be considered while giving away custody of a minor child to a single parent include health, the child's age, whether the child is a boy or girl, the financial stability of the guardian, and especially the child's ability to talk or express himself.

Generally, we have seen two types of custody of children under Hindu law as following.

Sole custody of child: In the case of sole custody of a child, either the mother or father gets custody based on the understanding of the court and the requirements of the circumstances to raise the child. All decisions in such a case were taken by the custodial parents, who were granted custody by the court. Other parents only enjoy the right to visit.

Joint custody: In the case of joint custody, both parents were given the responsibility of upbringing the child. However, Hindu law does not specify the age of a child when such a child's custody goes to single parents.

Child Custody under Muslim Law:

In Islam, mothers have the highest status, and it is not only considered kindness to serve your mother but also rewarded in Jannah. So, in the eyes of Islam, the first and foremost custodian of a child is his or her mother, unless she is disqualified to be custodian; this right of custodian is known as Hizanat. However, Hizanat is absolutely right; it is also based on the interests of children.

In the absence of the mother, other women who can take care of the child are the maternal grandmother, maternal great-grandmother, maternal aunt, real sister, uterine sister, consanguine sister, and paternal aunt. Mothers can have a minimum of seven years of custody, or until they get married. However, the mother has the right to her son's custody for up to 7 years or up to his puberty.

Father also has Hizanat, through which he can be the custodian of his child. It comes to mind at the completion of age, which mothers or other women are bound to do. Other men who can be the custodian of a child are the paternal grandfather, brother, son, etc.

Custodian under Christian law:

There is no provision in Christian law related to the custodianship of children after divorce. However, all such classes are governed by the Indian Divorce Act of 1869. According to Section 41 of the Indian Divorce Act 1869, the custody of a child is given to the parent based on the child's interests, well-being, maintenance, and education. Whoever fits the above conditions and convinces the court will be the custodian of the child.

The Guardians and Wards Act, 1890 is taken into consideration by the court, but final decision about the custody of the child will be taken by the family court. It is based on the best interest of the child's welfare, educational and others expenses were also taken into the consideration while granting the custodian of the child to either of the parents. Through various legislations it had made flexible for the family court to take the welfare of the child in consideration and make it in the best interest of the child.

Award Winning Article Is Written By: Mr.Sarfraz Ahmed
Awarded certificate of Excellence
Authentication No: JU3162151071996-11-0623

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