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Co-Author- Dolly Chouhan

Child custody is basically the guardianship of the child legally and physically, which bestows upon the parent, the right to make decisions concerning the life of the child and the responsibility to provide for the child and take care of it. The custody is usually joint when the parents are married but the question of single custody arises when divorce, separation etc. comes into question. The custody in India is governed by the Guardians and Wards act 1890 and some cases by section 26 Hindu marriage act which addresses the education and the maintenance of the child when both the parents of the child belong to the Hindu religion. When both parents of the child belong to different religions and have been married under the mandate of the special marriage act, they will be governed by section 38 of the Special Marriage Act. Christians are governed by section 41 Indian divorce act 1869. People belonging to the Islamic religion are governed by the mandates of Muslim law which considers the mother as the guardian for the child until he/she turns 7 years old after which the father is considered its natural guardian. Custody rights of children of parents belonging to the Parsi community are governed by the Guardians and Wards Act, 1890. The primary duty of all these acts are based on the principle of the betterment of the children and ensures the same through strict compliance.

So far the supreme court has made this a question of the betterment and welfare of the child instead of the right of the parent. The best interest doctrine is used to determine the custody of the child. Custody is given to that parent or guardian who seems fit for the upbringing and nurturing of the child keeping in mind various psychological, financial and lifestyle factors. In India, the custody of a minor child below 5 years is usually granted to the mother when she is found mentally stable to look after the child because the court believes that according to the laws of nature a mother is the best guardian for a child and is better adjugated to nurture an infant, in the cases where the mother is financially weak, the father is ordered to pay maintenance in order to bring up the child.

In the case where the child is above 9 years his/her opinion is given preference, he/she has a right to choose which parent to live with and the court keeps this in mind while deciding its custody, it still looks into various factors like if the parent is competent enough to physically, psychologically, economically adept to bring up the child, other factors that are kept in mind that the person should not be unlawfully bribing the child in order to gain custody because many cases in India have come forward that in order to escape from maintenance the father and his family were bribing the child to gain custody. Popularly, mothers are given custody of older girls and fathers the custody of older sons.

Once a child is a major he has the sole right to choose which parent he/she wants to live with and the full legal custody belongs to that parent.

There are various types of custodies:

1. Physical- minor will be under the guardianship of that parent and the other parent can be given visitation and periodical interaction. This is to make sure that the child is not deprived of both parent’s affection in its formative years.

2. Legal- custody is not only granted when the child is physically resting with a parent. Legal custody grants a parent right to make decisions regarding a child’s life. Even in a case where the physical custody of the child rests with its mother the court can give legal custody to its father if it deems fit for the wellbeing of the child.

3. Joint- both parents are responsible for the upbringing of the child, they have to work out a system amongst themselves where they both get to spend some time with the child are both involved in making decisions concerning the child’s life.

4. Third-party- In this type of custody, someone other than the parents, like grandparents or extended family is responsible for taking care of the child.

According to the census records, only 17.5% of fathers have custody of their children. That is only because it is still felt that women are the primary caregivers and that they are the ones who can lay a better foundation for the child to grow on and that the role of mothers in the early years of infancy is irreplaceable but that is not true in al the cases, there have been instances where fathers have proved to be a better choice for custodial guardianship. The major lookout in all the scenarios is the welfare of the child which was laid out in the case of V. Srinath Prasad vs. Nandamuri Jayakrishna, (2001) 4 SCC 7. 

In case of unlawful custody, the aggrieved parent can retort to filing a writ petition in the court of law of ‘habeas corpus. The writ is considered proper when it gets proved that the incarceration of a minor child by a parent is illegal and sans the authority of the law can be seen in the case of Arathi  Bandi Vs. Bandi Jagadrakshak Rao & Others, AIR 2014 SC 918. The court is specific that a mother should not be deprived of the visitation rights to her child. It is of utmost importance for the courts to examine the cases that come to it and return the child if there has been an unlawful separation of the child from the aggrieved parent. Seen in the case of N. Nirmala v Nelson Jeyakumar (JT 1999 (5) SC 223).

BIBLIOGRAPHY

• https://www.thebetterindia.com/195917/supreme-court-child-custody-law-mother-father-divorce-case-legal-india/

• https://www.helplinelaw.com/family-law/CHILDCLI/child-custody-laws-in-india.html

• http://www.legalserviceindia.com/legal/article-710-child-custody-laws-in-india.html

• http://www.fortunelegal.in/child-custody-laws-in-india.html

• https://www.businesstoday.in/moneytoday/cover-story/divorced-all-you-need-to-know-about-child-custody-rights/story/192716.html

• https://www.verywellfamily.com/child-custody-tips-for-fathers-2997873

• https://blog.ipleaders.in/child-custody-respect-indian-laws/