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“Custody of child shall be handed over to such a person who fosters him with care, love and affection.”
-Honorable Justice Vinod Prasad
Custody of a child is the right given by the court to the parent to look after the child. The issue arises when the parents decide to go for a divorce or judicial separation. While granting custody of a child the court gives foremost importance to the welfare of the child.
What are the factors that contribute to the welfare of a child?
- The ability to provide a safe and secure environment to the child.
- The ability to provide proper education.
- Proper upbringing that benefits the child.
- The ability to support the child financially.
In case of minor child, both the parents have equal rights over it. However it is up to the Family court to decide which parent gets the custody based on the circumstances after the divorce of the parents.
What are the kinds of custody?
The court may grant any one of these types of custody it feels appropriate
In this type, the minor child is placed under the care of one parent and the other parent will be given the right of periodical visitation. It will be arranged in such a way that the child gets to be with the parent who can provide care, education, safe and fulfilling environment but also won’t be denied of the love and affection from the other parent.
In Joint custody the parents take turns in keeping the child. Each parent may get to keep the child for certain days, weeks or months depending upon the case.
Legal custody does not necessarily mean the right to keep the child with the parent. It is the right to make decisions regarding the life of a child. Legal custody will be given to both the parents in most of the cases.
Third party custody
When the court decides both the parents are unfit to raise the child, the custody is given to a relative of the parents that the court finds fit.
The entire rights regarding a child’s custody will be given to one parent and the other parent is kept away from the child due to history of abusive behavior or any other reason the court finds needful.
Who can claim custodial rights?
Either the father or the mother can claim the rights to custody of a child. In case both the parents are incapable of bringing up a child or are deceased, the custodial rights goes to the maternal or paternal grandparents or any other relative whom the court deems capable.
How the priority is determined in giving the custodial rights?
The first criteria a court considers while determining who gets the custodial rights is the benefit of the child. In case of minor child below five years of age, the custodial rights is generally preferred to be given to the mother. If the child is older than five years then the custody is preferred to father if it is a boy and mother if the child is a girl. If the child is older than nine years. The mother can’t be denied of custodial rights merely because she is financially weaker.
What are the laws that deals with custodial rights for different religion?
The custodial rights of Hindus are dealt in the following acts
-Hindu Marriage Act, 1955
Section 26 of the Act deals with providing education and maintenance to the child. The provision of this act is only applicable when both the parents are Hindus. This section also provides that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.
-Special Marriage Act, 1954
In case of custodial disputes between parents of inter religious marriages, Section 38 of this Act is applicable. It provides that the application with respect to the maintenance and education of the minor children, during the proceeding shall be disposed of within sixty days from the date of service of notice on the respondent.
-Hindu Minority and Guardianship Act, 1956
This Act was enacted to specifically deal with the custodial rights of Hindus i.e. Hindus, Buddhists, Jains and Sikhs. It deals with the powers and liabilities of natural and testamentary guardians.
Under Muslim Law the custody of a child rests with the mother till the child reaches the age of seven. Then the father becomes the natural guardian. The age limit is set to seven since under Muslim law the age of majority is said to be the age of attaining puberty.
Section 41 of the Divorce Act, 1869 deals with the custodial rights after separation of Christian parents. It gives the court the powers to order regarding the education, maintenance and custody of the child. It is provided that the application shall be disposed of within sixty days from the date of service of notice on the respondent.
The matters regarding custody of a Parsi child is dealt in Guardians and Wards Act, 1890.