CUSTODY OF CHILD : GENDER NEUTRAL ARENA BY MANVI SINGH @LEXCLIQ

Post divorce or marriage annulment proceeding,the most vital and sensitive issues that arise are those that relate to child custody.Child custody is a term used in family law court to define legal guardianship of a child under the age of 18.There are various personal laws and general laws that deals with the matter regarding child custody in india,which include the Hindu minority and guardianship act of 1956,the Indian Divorce Act of 1869,and the guardian and wards act of 1890.Guardianship implies the proprietors rights and custody implies the responsibility of raising of a child . Legal custody include the rights of the parent to make decision which affects the welfare of the child,such as medical treatment,religious practices and insurance claims.Physical child custody places the prime responsibility on parent for the child’s housing,educational needs and food.In most cases the non custodial parent still has visitation rights.

ORIGIN 

The concept of custody and guardianship as enshrined in the indian legal system can be traced to english law,specifically the guardian and wards act of 1890,from which the hindu guardianship and minority act is derived from.When divorce was granted wives challenging the natural guardianship of their husband came into public discourse court in England started delivering judgement based on the principle that matrimonial litigation is not to punish the guilty but only to ensure the welfare of child.This gave way the concept of “Welfare of the child being paramount consideration is custodial matters “.

CRITERIA FOR DETERMINING CUSTODY OF MINOR CHILDREN : 

The court while exercising its parent patriae Jurisdiction takes into consideration a variety of factory in selecting a custodian.They are bound to give due importance to the child’s ordinary comfort,Contentment,health,education, intellectual development,moral and ethical values,ties of affection and favorable surroundings.

The modern development of family law has deviated from the concept of treating children as mere chattel and has progressed towards a more inclusive approach giving due importance to the preference of the child.Section ‐ 26 of the Hindu Marriage Act,provide for the wishes of the child to be made consistent with order in relation to custody whenever possible.

THE FACTORS LISTED OUT HIERARCHICALLY IN ORDER OF IMPORTANCE ARE : 

• Welfare of the child which is of the Paramount consideration.

• Wishes of the Parents

• Wishes of the child

• Age and sex of the child.

WELFARE OF THE CHILD 

One of the most well settled proposition in family law is to secure the child’s Paramount Welfare in matter relating to custody.However,what constituents “welfare” has had widely different interpretations . The Bombay High Court in the case of Carla Ganmon v/s shabaz Farukh allarakhi held that the child’s welfare was the supreme consideration,irrespective of the rights and wrong that the Parent Contend.The supreme court has further held that the welfare of a  child is not to be measured merely by money or physical comfort but the word welfare must be taken in its widest sense that the tie of affection cannot be disregard.

CONCLUSION 

Though seemingly it might appear like india is approaching a more gender neutral arena in term of custody law the various aforementioned Judgement are not absolute in awarding the status of custodian to the mother and are qualified by certain prerequisites Such as when it is mutually decide between the parents that the Mother will act as the guardian.

WRITTEN BY MANVI SINGH

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