After a marriage breaks down or ends up in separation of spouses, the person
who gets affected the most is the children who is born out of the marriage.
Thus, while keeping in mind the right of parent’s to the custody of a child, the
Indian Law, holds the child’s welfare as the most crucial factor of
consideration while deciding upon who gets the custody of a minor child.
Which Factors Constitute Welfare of A Child
There are three factors which constitutes the welfare of the child:-
# Ethical upbringing of the child
# Safe-keeping of the child
# Good education to be imparted
# Economic well-being of the guardian
Who Has A Right On Minor Child After Divorce?
Both the parents have 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 power to
decide upon. Moreover, when it comes to personal laws the statues are
conflicting as compared to secular enactment in the form of The Guardian and
Ward Act, 1890 which holds the welfare of the child as the paramount importance
and thereby the court of competent jurisdiction endeavor to strikes a balance
between the two. And as because the custody of the children is given to one
parent that doesn’t implies that the other parent cannot be in contact or see
the child. The courts in India makes sure that the child gets attention and
affection of both the parents. The court gives the other parent visitation
rights of which the conditions are determined by the court.
Kinds of Child Custody Arrangement In India
A court of competent jurisdiction in India primarily orders the custody of
children in the following three forms:
1. Physical Custody
Physical custody when awarded to a parent, implies that the minor will be under
the guardianship of that parent with periodical interaction and visitation with
the other parent. The target behind such a custody award is to give a better
life to the child in a safe and fulfilling environment and also makes sure that
the child is not deprived of the affection of the other parent during his or her
2. Joint Custody
Joint Custody of a child does not implies that both the parents have to live
together because of the child despite the fact that Indian courts believe that
it is the best for the welfare of a minor. Joint custody actually 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 among the parents may vary from certain
days or a week or even for a month. These benefits the child as on one hand the
child gets the attention of both the parents and on the other hand parents get
to be a part of their child’s life.
3. Legal Custody
Legal custody of a child does not necessarily entails having the child with the
parents or vice-versa. It basically means that the parents are granted the legal
custody and they can take every decision for the child likewise education,
medical treatment, etc. In most of the cases, legal custody is granted to both
the parents together but in certain cases where the divorce is messy and parents
do not agree with each other, then in such cases the court grants legal custody
to any of the one parent.
How To Know The Type Of Custody Granted?
Till the time the order of the court does not specially mentions the conditions
discussed above, the parent who is awarded the custody of the child gets the
physical custody as well as legal custody. If there is any other kind of custody
awarded, it will be mentioned in the order of the court and will be made clear
to both the parties.
Who Can Claim Custody of A Child?
The custody of a child can be claimed either by mother or the father. In any of
the case where the two of the parents are not in the picture due to operation of
some other laws or deceased then in such situation, the maternal or the paternal
grandparents or any other relativescan claim custody of the child strictly out
of compassion towards the child. In many cases, the court appoints the third
person as the guardian of the child.
Who Has The Priority Claim To The Custody of A Child?
The Hon’ble Supreme Court and other courts in India have repeatedly mentioned
that for the custody of a minor, the only consideration is the welfare of the
minor, irrespective of the claims of the parties to the custody of children.
Under Hindu law and as well as Secular law, the custody of the child under the
age of five is usually awarded to the mother. In most of the cases fathers gets
the custody of the older boys and mother of the older girls. Moreover, child’s
interest is the main criteria and the choice of the child above the age of nine
is considered by the court. Wherein a mother if found to ill-treat and neglect
the child is not given custody.
Who Gets The Custody Of A Minor In Case The Mother Has A Weaker Financial
Condition As Compared To The Father But The Father Has Remarried And Has Kids
With Second Marriage?
In such cases, the mother cannot be discarded as the guardian only because she
earns less than the father. Well, in such case the father of the child has to
provide for the child’s maintenance. Moreover, the principle of law says that a
step- mother has primarily obligation of affection and attention towards her own
children and the father would remain out for work all day, and thus, the mother
is proved to be a better guardian for the minor child.
Legislations Governing Child Custody Under Different Laws In India:
India being a secular nation has different religions to follow and thus every
religion has their personal law set for child custody which determines the
process by which a parent seeks the custody of their child.
1) Custody Under Hindu Law:
The laws under Hindu Law namely, Section 26 of Hindu Marriage Act 1955, Section
38 of Special Marriage Act 1954 and Hindu Minority and Guardianship Act 1956
mentions the rules and regulations set for seeking child custody.
Let us discuss about them in details:
a) Section 26 of Hindu Marriage Act 1955
It deals with the maintenance, caring and education of child and only when both
the parents follow Hindu religion, the custody of child gets validated. Under
this act, the court can pass orders, judgements, amendments, etc. at any point
of time in respect to the maintenance of child and dispose of the pending decree
within the 60 days from the date of service of notice.
b) Section 38 of Special Marriage Act 1954
This act validates the custody of the child in case both the parents belong to
different religions or have undertaken a court marriage. Under this act, the
court can pass orders, judgements, amendments, etc. at any point of time in
respect to the maintenance of child and dispose of the pending decree within the
60 days from the date of service of notice.
c) Hindu Minority and Guardianship Act 1956
This act allows only biological parents to seek the custody of their minor child
provided that he/she is a Hindu.
2) Custody Under Hindu Law:
Under Muslim law, only the mother has the right to seek his/her child custody as
per Right of Hizanat until she is not found guilty of any misconduct.
# The custody of a child under Muslim law is with the mother until the child has
attained the age of 7 years for a boy and until she has attained the age of
puberty or majority for a girl.
# The custody of the child remains with the father until the boy has attained
the age of 7 years and the girl has attained the age of majority or puberty as
because the father is considered to be the natural guardian.
3) Custody Under Christian Law
The Christian religion needs to follow the laws and reforms set under Section 41
of Divorce Act, 1869 for the child’s custody. Also, in addition to this law,
Section 42 and 43 of the same holds the right to decide upon the child’s custody
after the judgement with respect to separation has been passed. The child is
given to a person who server better and is proved to be a batter guardian for
the child and the claim can even be denied if the court finds that both the
parents are incapable of giving a proper atmosphere to the child.
4) Custody Under Parsi Law
The custody of a child under Parsi law is dealt with the provisions of the
Guardians and Wards Act, 1890. Its main aim is the welfare of the child and can
put anything to stake to make sure that the welfare of the child is confirmed.
In India, the custody of a child depends upon the personal laws and read with
The Guardians and Wards Act, 1890. The foremost thing is to allot the custody of
a child to seek welfare and so if required the other personal law rules and
rituals can be set aside. Preferences are given to the parents and the child but
it is the court who takes the final decision regarding the custody of the
child.Content Reference from Legal Blog.