WHO WILL GET THE CUSTODY OF CHILD AFTER DIVORCE?

As the society is evolving, cases of divorce are not uncommon in India. However, divorce is one thing that affects the children more than it affects the parents, irrespective of a child’s age nobody can determine the exact psychological and emotional development that may get hampered. Moreover, in India, children under 18 years of age are supposed to have a legal guardian. 

In legal terms, child custody can be defined as the process of allotting a right to one of the parent to have over the other regarding their child either during or after the decree of divorce or judicial separation is passed. 

 

Custody of Child in India

The rules and provisions for the custody of a child in India depends upon the religion of the child as well as the parents. The custody of a child in India is governed by the personal law of the child along with the Guardians and Wards Act, 1890. The Guardians and Wards Act, 1890 applies to each and every citizen of the country. 

Custody is basically divided into parts, namely Physical Custody and Legal Custody. Legal custody means that the parent has the ability to make the major decisions about the child's health, education, safety and welfare. Physical custody refers to which parent the child lives with.

 

Factors for consideration before giving the custody

Before the court gives the custody to either of the parent, it goes through a set of factors for determining who has the ability and potential to keep the child in the environment necessary for its upbringing. The factors that are considered for determination are:

1. emotional and physical environment; 
2. personal safety of the child; 
3. moral atmosphere of the household; 
4. mental and physical health of the parents; 
5. age of the child; 
6. preference of the child; 
7. prior behaviour of the parents, including any history of abuse; 
8. ability of each parent to care for the child; and
9. importance of religious upbringing within the family.

 

Though mentioned above are the factors required by the court to come to a conclusion before handling over the custody of the child to one parent, there exists the personal laws which also need to be referred before passing an order. The various personal laws to be considered are: Hindu, Muslims, Christian and Parsi Laws.

 

Custody of Child under Hindu Law

Hindus did not recognise the concept of Custody until the Hindu Minority and Guardianship Act, 1956 was passed. Now, the custody of a Hindu child is governed by the Guardian and Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956. Also, the definition of Hindus will include Jains, Buddhists and Sikhs.

1. As per the Hindu Minority and Guardianship Act, 1956 the Hindu child below the age of 5 years shall be kept under the custody of the mother as till this age it is only the mother who can give proper emotional, moral as well as physical support to the child.
2. The custody of a boy or an unmarried girl below the age of 18 years and above the age of 5 years shall be given to the father of the child as he is considered to be the natural guardian and only after his death the custody shall be given to the mother.
3. In case the child is illegitimate then the custody shall be with the mother itself.
4. If the parents are not willing to take the custody of the child or if the court thinks that for the welfare of the child it would be better if he is not kept under the guidance of the parents then even a third person may be allotted the custody of a Hindu child. In this case usually, the grandparents be that paternal or maternal will be preferred to get the custody of that Hindu child if they are interested.
5. If neither the parents nor any of the close relatives of the child are initiating to take the custody of the child then the court by itself shall find an appropriate person who could take the custody of the child.

 

Persons Who Cannot Get the Custody of a Hindu Child

A person, under any circumstance, will not get the custody of a child, if:

1. a.  he ceases to be a Hindu, that is, he has converted to any other religion and no longer remains a Hindu.
2. b.  he has completely renounced the world, that is, he is no longer interested in the materialistic world, rather he is willing to become a saint in search of emancipation of God.
3. c.  he would not be able to take proper care of the child due to any of his wrong or unhealthy practices

 

Custody of Child under Muslim Law

The custody of a Muslim child is also governed by the Guardians and Wards Act, 1890 as there is no separate law for Muslim child unlike Hindu child. The custody of a child under the Muslim law is known as “hizanat”, which literally means “the care of the infant”. Under Muslim law, the child attains majority after he has attained the age of puberty, i.e. the terms puberty and majority are considered to be the same.

1. The custody of a Muslim male child is with the mother until he has attained the age of 7 years and female child until she has attained the age of majority or puberty.
2. The custody of a boy after he has attained the age of 7 years and the girl after she has attained majority or puberty is with the father; as under Muslim Law it is the father who is considered to be the natural guardian of the child.

 

Persons Who Cannot Get the Custody of a Muslim Child

A person, under any circumstance, will not get the custody of a Muslim child, if:

1. he is not of a sound mind.
2. he doesn’t possess a good moral character.
3. he lives in such a place or in such a manner that would not be appropriate for the welfare of the child or  if he is leading an immoral life .
4. he would not be able to take proper care of the child due to any reason.
5. he ceases to be a Muslim, that is, he has converted into another religion other than Islam.
6. she is a woman who has married another man who is not within the prohibited degree of relationship with the child.

 

Custody of Child under Christian Law

The custody of a Christian child is governed by the provisions of the Indian Divorce Act, 1869 read with the Guardians and Wards Act,1890. Sections 41, 42 and 43 of the act deals with the powers which are conferred to the court regarding the allotment of custody of a Christian or any other child who is not covered under the different personal laws of the country.

As per the provisions of the Act, the court may give directions either during the proceeding of the case or after the decree for divorce has been passed by the court separating the parents. The child shall be given to the person who would serve to be a better guardian for the child and for this, even the claim of the parents can be denied if the court feels that both the parents are incapable of giving the child a proper atmosphere to grow both physically as well as mentally.

 

Custody of Child under Parsi Law

The custody of a Parsi child is also dealt with the provisions of the Guardians and Wards Act, 1890. The welfare of the child is paramount, that is, anything can be put to stake to make sure that the welfare of the child is confirmed. No custom or religious ceremony should be considered if the welfare of the child is at stake.

 

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

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