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LAWS GOVERNING CHILD CUSTODY

INTRODUCTION

Marriage is a sacred bond and that too is because of many motives. But the sad part of this comes when there may be a divorce. When the two people tie the knot of marriage, fortunately, however, if they (due to a few troubles) desire to end that relationship or wreck that knot then it’s a very sad issue approximately. After a divorce, marriage breaks down now; the question is with whom the child will live that is born out of the wedding did? A vital issue relating to the guardianship of the child is born because the guardianship of the child is fragile and touchy trouble. The courtroom has stepped on this remember and made laws concerning the same and, Indian laws keep ‘the Welfare of child’ because the maxi mother vital thing of consideration at the same time is finding out upon you receive the custody of a minor child.

FACTORS FOR CHILD GUARDIANSHIP

  • The ethical upbringing of the kid
  • Safe maintenance of the child
  • Proper education to be communicated
  • Economic well-being being of the guardian
  • Lifestyle
  • Expertise with the kid
  • Social and other needs of the child.

KINDS OF CUSTODY

  1. Physical Custody – the guardianship of a child is granted to a parent. To discern to whom guardianship is given is the ‘Custodial discern’ and other discern, perhaps given visitation rights.
  2. Joint physical custody- each of the parents is granted guardianship rights and, the child lives with each father and mother for the same or determining the quantum of time.
  3. Sole Custody – simplest one figure has custody rights and the opposite discern is said not worthy of the guardianship of the child and hence barred.
  4. Third-party Custody – the guardianship rights are not given to either of the parents. Nether neither to mother nor to father, instead, a 3rd celebration is granted guardianship rights of the child.

LEGALITY FOR CHILD CUSTODY

India being an earthly state has distinctive religions to follow an identical is the motive that various laws that govern the zone of child custody.

  • “Guardians and Ward Act, 1890”[1]: it’s far from the temporal regulation governing child guardianship. In line with section 17 of the same act [“Matter to be considered by the court in appointing guardian”][2]; the courtroom must be guided with the aid of the Welfare of the minor. The act mainly ambitions for the betterment of the kid and has more than one legal provision to make sure they are equal. There is additionally a provision contained for the joint guardians. The act is applicable no matter the religion of the child or the mother and father of the child.
  • “Hindu Minority and Guardianship Act, 1956”[3]: The act is applicable handiest to the Hindus. the availability does now not think about the 3rd party custodial rights it the handiest talks about the custodial right among the biological parents handiest and concern to the truth that they’re Hindu. Until the child is of 5 years, the parent is his biological father or mother however, after that, the mother and father are the mother or father of a son and unmarried daughter.
  • “The Special Marriage Act, 1954”[4]: ‘section 38[5] of the act offers the custodial rights in the case of the mother and father belonging to distinct religions.
  • “Hindu Marriage Act, 1955”[6]: ‘section 26[7]’ of the act, talks approximately the education and protection of the child most effective while each the mother and father are of the Hindu religion. This section of the act empowers the court to bypass intervening time orders, and decisions for the custody, protection, and training of the child throughout the proceedings below the act.
  • Christian regulation: The provisions relating to the custody are governed as “according to the Indian Divorce Act, 1869[8]. Section 41, 42 and 43[9] are relevant, you may practice for divorce and they grant energy to the court for passing an order on the subject of maintenance, custody, and training of the kid”.

Hindus are governed by the Hindu Minority and Guardianship Act, wade through the Guardians and Ward Act, 1890; which is temporal. Muslims are governed by personal law read with the Guardians and Ward Act, 1890. On the other hand, Christians are governed by the Guardians and Ward Act, of 1890 wade through the Indian Divorce Act, of 1869. And Parsi is governed by the Guardians and Ward Act, 1890. In Hindu and Muslim, a father is treated as the natural guardian, but in Parsi and Christian, there is no such distinction. In Hindu and Muslim, the best interest of the child is considered but when it comes to Christian and Parsi the fundamental principle for granting the custody is the best interest of the child. And the opinion of the child is given a considerable value if he is able to understand the situation. In Muslim, the child’s opinion is considered and in Hinduism, the child has a say in the granting of custody. Under Muslim law custody is termed as ‘Hizanat’.

JUDGMENTS

  1. Supreme Court in the case of Geeta Hariharan vs. Reserve Bank of India[10], – held that the claim of custody by the mother can only be under the pretext of the death of the father or in his absence. But this role is not applicable if, case, the child is illegitimate. In such a case, the right to custody is only with the mother.
  2. Supreme Court in the case of Mausami Moitra Ganguli vs. Jayant Ganguli, 2008[11]– held that the welfare of the child is a must; it should be considered the crucial factor. The question involved here was concerning the custody of the 10-year-old minor child. The Court said that the more important thing than the statutory provision is the Welfare of the Child.
  3. In the case of Keshav R Thakur vs. Suchi Bai, 1998[12] – the father of the child boy had died when the boy was 6 years and he had been living with his grandparents for 10 years. Now the mother of the boy has appealed for the custody of the boy before the court. Here, Court held that because the boy had been living for a long time with the grandparent that’s why the custody can’t be granted to the mother, and the visitation granted to the mother by the court.
  4. Rosy Jacob vs. Jacob Achakramakka, 1973[13]– is one of the landmark judgements under child custody. The Supreme Court in this case held that there is a balance between ‘the Welfare of the child’ and ‘the rights of the parents over their children.

CONCLUSION

As the custody of a child is a very sensitive topic and we have gone through many laws and legislatures made by the government for this matter, one thing which is common for all people of different religions and in all acts and laws is that the foremost factor for custody of a child is ‘Welfare of the child’. The welfare of the child is considered to be the most cautious factor among all other factors. “No legal rights, preferential rights or any other right holds more importance than the Welfare of the child and the Court of Law grants custody to that party only who can assure the Court that with them,  the Welfare of the child lies best”.

Author(s) Name: Anshul Parashar (Banasthali Vidyapith University, Jaipur)

References:

[1] Mitra BB and others, Guardians & Wards Act (Eastern Law House 2007)

[2] “The Guardians and Wards Act, 1890 |Legislative Department ”<https://legislative.gov.in/actsofparliamentfromtheyear/guardians-and-wards-act-1890> accessed June 17, 2022

[3] Mahmood T, The Hindu Minority & Guardianship Act, 1956 and the Hindu Adoptions & Maintenance Act, 1956 (Law Book Co 1986)

[4] (Bhatnagar, The special marriage act, 1954: Act nr. 43 of 1954,)

[5] “The Special Marriage Act, 1954; Section 38” <https://legislative.gov.in/sites/default/files/A1954-43_1.pdf> accessed June 17, 2022

[6] Mahmood T, The Hindu Marriage Act, 1955 (Law Book Co 1998)

[7] “The Hindu Marriage Act, 1955 ; Section 26” <https://www.highcourtchd.gov.in/hclscc/subpages/pdf_files/4.pdf> accessed June 17, 2022

[8] B. RHA, Aiyar PR and Aiyar SK, The Law of Divorce Applicable to Christians in India: (the Indian Divorce Act 1869) (The University Book Agency 1936)

[9] “India Code: Divorce Act, 1869( S.41,42,43)” <https://www.indiacode.nic.in/handle/123456789/2280?locale=en> accessed June 17, 2022

[10]  Jus Corpus, Jus Corpus, “Githa Hariharan & ANR V. Reserve Bank of India & ANR” (Jus CorpusJanuary 18, 2022) <https://www.juscorpus.com/githa-hariharan-anr-v-reserve-bank-of-india-anr/> accessed June 17, 2022

[11] “Custody of Children – SCC Blog” <https://www.scconline.com/blog/post/2019/11/25/custody-of-children/> accessed June 17, 2022

[12] “Keshav Ram Thakur and ANR. Vs Smt. Suchhibai on 27 July, 1998” <https://indiankanoon.org/docfragment/540374/?formInput=mahasamund> accessed June 17, 2022

[13] “Jacob A. Chakramakal v Rosy J. Chakramakal on 28 February 1975 – Judgement – Lawyerservices” (The Tech Solution) <https://www.lawyerservices.in/Jacob-A-Chakramakal-Versus-Rosy-J-Chakramakal-1975-02-28> accessed June 17, 2022