Custody of child in India

By Grishma Shetty at lexcliq


The custody of child has always been a burning issue where ever there is a dispute between husband and wife. Couples seeking divorce or judicial separation are under the pressure as who will get the custody of the child. Custody of child is a debatable topic and usually depends upon the circumstances of the case and the ‘status’ of mother father and their respective families. The status will gradually be a factor in upbringing of the child and has thus to be look into carefully.

Family courts while determining the question of custody of child looks deeply into the fact that such has healthcare, financial security, proper lifestyle, emotional and mental development and factors which will contribute to welfare of the child. The family court while deciding the custodial rights of one of the parent looks deep into the facts like how will be the ethical upbringing of the child, whether the child receive necessary education, proper care and safety  to the child must be sound mind and also bear financial stability.

Custody of a child as per different religions:

As per Indian law custody of child is decided either by universal law which is the guardians and wards act, 1890. This law applicable irrespective of religion of parents and child in India. However specific secular law are also given value and sanction pertaining to existing religions in society. Different cases deciding the custody of the child are as follows –

  1. Parents =court does not differentiate between father and mother and give equal rights in respect to legal custody of the child. There are factors on which the court decide who will have the custody of the child.

Court consider the following aspects while determining the custody

Mental, emotional and physical ability to make legal decisions; History relationship between the child and the             parent

History of abuse, neglect, misbehavior

Financial status of the parents;

Wish of the child and his/her selective opinion on his own.

2. Religion = as per hindu minority and guardianship act 1956 under section 6 the custody of a hindu minor are as a boy or an unmarried girl and an illegitimate boy or an illegitimate unmarried girl and a married girl ;the hindu marriage act 1955  under section 26 a decree must be proper and in respect to custody, maintenance, education of minor child ;special marriage act 1954 under section 38 provide custodial rights where the parents belongs to different religion. Rules and regulations for custodial rights of a minor after separation.

Forms of custody:

  1. Physical custody = usually parent are awarded with the physical custody of the child. One of the parent is given the custody while the other one meeting rights. This is usually the most practiced form to settle down the meeting times.
  2. Awarding of joint = in this type of custody parents are vested with the right to jointly keep the child from time to time and in turns. It is not necessary for the parent of the child to stay together under one roof, this is one of the better ways to settle the custody disputes as both the parent have access to their child and can spend quality time with sense of responsibility.
  3. Third party custody = under this practice neither of the parent is given custodial right of the child. This is usually rare but if the court observe the incapacity of either the parent, a third person who will act as guardian is appointed usually of a near relation to take care of the child.
  4. Sole custody = this is usually a case one of the parent is having a previous history of abusive behavior nature of the parent does not given wholly to the other parent.

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