Dated: 2020-09-17 19:22:07What are the factors to be considered before giving the custody and are the Hindu Laws different from Muslim Laws in case of child custody?
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:
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.
Persons Who Cannot Get the Custody of a Hindu Child
A person, under any circumstance, will not get the custody of a child, if:
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.
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:
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.Minal B Khona