When there is a divorce between married couples, an important issue pertaining to the custody of a child arises. Child custody is a delicate and sensitive issue. The Court has to look into various factors prior to granting custody of the child to one of the parents. Factors like financial status, lifestyle, understanding with the child and the ability to fulfill the educational, social and other needs of the child play an important role. However, the primary importance has been given to the ‘welfare of the child’.
There are various types of child custody: –
- Physical Custody: In such cases, the custody of the child is granted to a parent. The parent to whom custody is given is the custodial parent. The other parent may be given visitation rights.
- Joint Physical Custody: In such cases, both parents are granted custody rights. The child lives with both parents for an equal or decided amount of time
- Sole Custody: In such cases, only one parent has custody rights. The other parent is declared unfit for the custody of the child and hence barred.
- Third-Party Custody: In such cases, the custody rights are not given to either of the parents. Rather, a third party is granted custody rights of the child.
LAWS GOVERNING ‘CHILD CUSTODY’ IN INDIA
In India, there are various laws that govern the domain of the ‘Child Custody’. The reason being, diverse religious and secular laws are in operation. Following are the legislations relating to the ‘Child Custody’: –
- Guardians and Wards Act, 1890
It is the secular law governing child custody. The Act is applicable irrespective of the religion of the child or parents of the child. The Act provides for appointing a guardian for the person and property of the minor child. There is also a provision contained for the joint guardians. As per Section 17 of the Act, the court must be guided by the welfare of the minor.
- Hindu Minority and Guardianship Act, 1956
The Act is applicable only to the Hindus. Under the Act, classes of natural guardians of a Hindu minor are enumerated. Mother is the natural guardian of a child till he is of 5 years. After that, the guardian of a son and unmarried daughter is father and mother. The guardian is in respect to the person and the property of the minor. But the guardian requires the permission of the court for certain acts like sale, gift, mortgage, etc. of the property in the name of a minor.
- Hindu Marriage Act, 1955
Section 26 of the Act empowers the court to pass interim orders, judgments for the custody, maintenance and education of the child during the proceedings under the Act.
- Muslim Law
The Muslim law grants custody of the child to the mother only. The custody can be taken away if she is found guilty of misconduct. Father is given custody only in the absence of the mother.
- Christian Law
The provisions relating to the custody are governed as per the Indian Divorce Act, 1869. Section 41, 42 and 43 are relevant, you can apply for divorce and they grant power to the court for passing an order in relation to maintenance, custody, and education of the child.