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CHILD CUSTODY INDIAN LAW FOR LAY PERSON

Perhaps one of the most crucial issues that comes up after getting a divorce is the matter of child
custody. In the majority of divorce cases in India, child custody is settled between parents
themselves, without the need to go to court. However, if you are among the small number of cases
where parents are unable to settle the issue between themselves, then you need to be aware of how
Family Courts in India decide on custody issues.
In India, children under 18 years of age are supposed to have a legal guardian. The party who is
awarded guardianship by the Court has the responsibility of taking care of the child. In some cases,
the parents may share the custody of the child, but only one parent may be given the actual
physical custody of the child. The court mostly bases their decisions on the best interests of the child
and not always on the arguments of each parent.
(If you are getting a divorce, you may also find this article on maintenance laws in India useful).

Basics of child custody Laws in India


Physical custody means that one parent is held responsible for the childs basic/daily needs like
housing, education and food. But in many cases, the non-custodial parent still has visitation rights.
Although there are some specifications under each personal law, Child custody matters in India are
governed by the Guardians and Wards Act 1890 (GAWA), which is applicable to people of all
religions in India. Under these Acts, generally, the custody of a small child is given to the mother.
Custody of older boys may be given to the father, and of older girls to the mother. However, courts
also consider specific personal laws while giving their judgements.
Hindus are governed by the Hindu Minority and Guardianship Act 1956 (HMGA), which follows
similar considerations as GAWA. Although the HMGA provides that the father is the natural guardian
of the child, the paramount consideration for custody is the welfare of the child. Courts in India have
therefore tended to give custody of young children to the mother, on the grounds that children of
tender years cannot manage without maternal affection.
As per Muslim personal laws, minor children are given to mothers. But after the age of seven years,
the mothers right over the son ends. Girls are given to mothers until they attain puberty. One
important aspect of this law is that the conduct of the mother is of great importance, and if that is
found objectionable, she may not be given custody rights. The father has the right to custody after
the mothers term ends. In case of the absence of both parents, the grandparents are offered the
custody of the child. Also, as per Shia law, if a person ceases to be a Muslim, the childs custody
cannot be granted to him/her.
In the case of Christians, custody issues are handled by the Indian Divorce Act, 1869. Section 41 of
the Act has some provisions which state that the Court may pass such orders as it deems proper,
including placing the child in its protection.

However, an important point to be noted is that irrespective of the customs or personal laws,
any parent who wants custody of a child and cannot reach a settlement has to seek custody
separately from the Court. There is never any automatic transfer of a childs custody to a
particular parent.

How courts decide child custody


The courts give their decision based on various aspects that deal with the welfare of the child. These
factors include the character of the parent, economic conditions of the parents, any specified will of
a deceased parent, the moral environment at home, age and sex of the child and so on. Childrens
preferences are generally considered after 9 years of age. Some archaic considerations still remain,
which means that in case of remarriage of a woman, generally custody is not granted to her while it
may be granted to a father who remarries, especially if the second wife cannot give birth.
There are two types of custody which may be granted. One is sole custody where only one spouse
gets the physical custody of a child. The other is joint custody where both the spouses share the
custody of the child.

Other key facts about child custody law in


India
Custody in India is not a hard and fast issue, and judges decide on a case-to-case basis. It is not
always necessary that if you are of unsound economic condition or have some other problems, you
will not be given custody. The courts keep in mind the mental satisfaction of the children and their
best interests. After a divorce, the husband may be ordered to pay maintenance to the wife, which
can also be used to bring up the child.
If you feel that you are capable of taking care of your child, then you must file an application. It is
your right to get custody of your child. It is also advisable to meet a good lawyer and work on these
aspects in advance. If one of the parents is given custody of the child, the other is granted visitation
rights. That means that he/she can meet the child with permission from the custodial parent. It is also
possible to request the Court to reconsider its decision after a period of time, especially if the
children are not happy.
Other Useful Links
Some links that deal with child custody aspects are:
Legal Service India : http://www.legalserviceindia.com/article/l34-Custody-Laws.html
You are not alone : http://groups.yahoo.com/group/you_are_not_alone_we_are_there/ (Support
group for divorced women of Indian origin)

Custody Under Hindu Law:

All the personal law matrimonial statutes make provisions for dealing with the issue of
child custody. The provisions in the matrimonial Acts can, however, be invoked only
when there are some proceedings pending under the Act. Hindus have an additional
Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Apart from this, there is
the Guardians and Wards Act 1890 (GWA). This is a secular law for appointment and
declaration of guardians and allied matters, irrespective of caste, community or religion,
though in certain matters, the court will give consideration to the personal law of the
parties. The provisions of the HMGA (and other personal laws) and the GWA are
complementary and not in derogation to each other, and the courts are obliged to read
them together in a harmonious way. In determining the question of custody and
guardianship, the paramount consideration is the welfare of the minor. The word
`welfare' has to be taken in its widest sense, and must include the child's, moral as well
as physical well-being, and also have regard to the ties of affection.
The English and Indian decisions are replete with such statements that : (i) the children
of tender years should be committed to the custody of the mother, (ii) older boys should
be in the custody of the father, and (iii) older girls in the custody of the mother. But these
are judicial statements of general nature and there is no hard. and fast rule. As to the
children of tender years it is now a firmly established practice that mother. should have
their custody since father cannot provide that maternal affection which are essential for
their proper growth. It is also now ac for proper psychological development of children of
tender years ma is indispensable.
The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down
that custody of a child upon the age of five should ordinarily be with the mother. Under
other personal laws, though it is no such statutory provision, the Indian courts have
consistently taken view. The following observation of Beaumont, CJ. represents the
judicial knew ......if mother is a suitable person to take charge of the child quite
impossible to find an adequate substitute for her for the child.
In In Re Kamal Rudra Das J. expressed the same view vividly thus : ,
I have no doubt in my mind that the mother's lap is God's own cradle for a child of this
age, and that as between father and mother, other things being equal, a child of such
tender age should remain with mother.'

But a mother who neglects the infant child as she does not want to sacrifice the type of
life
she
leading
can
be
deprived
of
custody.
In respect of older children our courts take the view that the male children above the
age of sixteen years and female children above the age of fourteen years, should not
ordinarily be compelled to live in the custody to which they object.' However, even the
wishes of the mature children will be given consideration only if they are consistent with
their welfare! In Venkataramma v.. Tulsi,' the court disregarded the wishes of the
children as it found these to induced by wholesale persuasion and were even tortured.
Custody to third persons. -Ordinarily, custody should be given to either of the parents.
But where welfare so requires, custody may be given to a third person. In Baby v., Vijay
granting custody of two minor children to maternal grandfather, the court observed that
even if the father was not found unfit, custody might be given to a third person in the
welfare of the child.

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