Before discussing the Child Custody Laws in India, we need to understand the concept of custody and exactly when the question of child custody arises. When two people get married and have a child together and later on decide to get divorced due to whatever reason on their own, then the question regarding the custody of the child born out of the marriage or in simple words, with whom the child will stay after the split, arises.
When two people in wedlock have a child and then, later on, they decide to split, both of them have a right to keep the child with them and it is up to the discretion of the Court to decide which of the parent is more capable of keeping the child with them and hence who should have the custody of the child. The Indian courts dealing with the cases regarding the custody battle of the parents have clearly mentioned that when parents decide to get divorced the person who gets affected the most is the child born out of that marriage, because growing up a child needs both his/her parents equally. (1) So while deciding child custody the court focuses on the “welfare” of the child with utmost importance. (2)
The court has also laid down the definition of the term “Welfare of the child” (3), which includes the following factors:
- Safe-keeping of the child
- The ethical upbringing of the child
- Good education to be imparted
- The economic well-being of the guardian
Child Custody Laws under Different Acts in India:
In India, Child Custody is regulated by various Central Laws and Personal Laws and often it is observed that both the laws are contradictory among each other. As India is secular country and people living here belongs to a variety of different religion, every religion has their personal law set for child custody which determines the process by which a parent seeks the custody of their child.
1 Saraswatibai Shripad Vad v. Shripad Vasanji Vad, 1940 SCC OnLine Bom 77.
2 Sheoli Hati v. Somnath Das, (2019) 7 SCC 490.
3 Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.
Guardians and Wards Act, 1890:
This is the Central Secular Act which governs the guardianship and custody for all children within the territory of India, irrespective of their religion, in case of separation between the parents. But in each case, the parents have the option whether they want to file the case under the provisions of this act or the provisions of their own personal laws.
Custody Under Hindu Law:
Hindu Minority and Guardianship Act, 1956:
This is Hindu personal law which essentially does not deal with the custody of a child in case of separation but it plays a very crucial role in determining the terms like minor and “welfare” of the child while deciding the cases of custody in the courts.
In Section 13 (4) of the Act, the term “Welfare” is defined and it has been interpreted to its widest possible meaning by the Indian courts over these years which covers the child’s physical, mental, ethical, and moral all-round welfare. (5)
Under this act, the father of the child is regarded as the natural custodian of the child in cases of separation by the logic that usually in most of the cases a father’s income is higher than the mother and hence the father has more resources required for the welfare of the child. (6) But in recent cases the court has disregarded the notion and they focused on the capabilities of both the parent needed for the welfare of the child and not just the financial factor. (7)
Hindu Marriage Act, 1955:
Under Section 26 (8) of the Act, the courts have the power to pass interim orders in the cases filed under the Act, with respect to custody, maintenance, and education of minor children, in consonance with their wishes. The Section also gives the courts power to revoke, suspend or vary such interim orders passed previously at any point of time as they deem fit.
Like Hindu Minority and Guardianship Act, 1956, Islamic law, also considers the father of the child as his/her is the natural guardian based on the financial aspect in case of separation. But, in Islamic Law, the concept of Hizanat provides the mother of the child with the power of custody until the male child reaches the age of seven and the female child reaches puberty (12- 15 years) as it is believed that all children need the care of his/her mother up to a certain age irrespective of the continuation of the marriage. A mother cannot be deprived of this right unless she is disqualified because of apostasy or misconduct and her custody is found to be unfavorable to the welfare of the child.
Parsi and Christian Law:
Under Section 49 of the Parsi Marriage and Divorce Act,1936 and Section 41 of the Divorce Act, 1869, courts are authorized to issue interim orders for custody, maintenance, and education of minor children in any proceeding under these Acts.
Marriages registered under Special Marriage Act, 1954:
Couples who decide to get married under the provision of this act in case of separation they have to apply through Section 38 (9) of the Act which gives the court similar powers as provided under any personal laws.
Types of Child Custody Arrangements in India
In India there are primarily, the court grants the custody of a child in the following three forms:
This is the most common form of granting custody of the child where the court after assessing all the aspects of the welfare of the child selects one of the parents as the custodian or guardian of the child after the separation. Physical custody means that the child will stay with that parent in the future and he/she has to take adequate care of the child. But the other parent does have a periodical visitation right in these cases.
Joint custody of a child means that both the parents will take turns keeping the child in their custody. The terms of such an agreement are decided by the court only in regard to how many days the child will spend with his/her parents and these can vary from certain days, weeks to even months. The aim of this is to ensure that growing up the child gets the affection and care needed from both the parents.
Legal custody of a child means that the parent granted legal custody takes every decision for the child. It may vary from which school the child will be sent to all the other possible attributes related to the welfare of the child. Unless the divorce is messy and the parents are, apparently, never going to agree with each other, in most cases, courts grant legal custody to both the parents together.
9 Marriages registered under Special Marriage Act, 1954, Section 38.
Different factors regarding Child Custody
Child Custody laws in India have developed through case laws. The court has changed its approaches and its preconceived societal notions many times over the years to meet the needs of the people. In the case of Lahari Sakhamuri v. Sobhan Kodali (10), the court mentioned the factors to be kept in mind while deciding the custody battles, and those are;
- maturity and judgment;
- mental stability;
- ability to provide access to schools;
- moral character;
- ability to provide continuing involvement in the community;
- financial sufficiency and last but not the least the factors involving a relationship with the child, as opposed to characteristics of the parent as an individual,
In the case of Nil Ratan Kundu v. Abhijit Kundu (11), the court said that if the minor child is mature enough to understand what is good and what is bad for himself/herself (Welfare) and if he/she has a particular preference in staying with one of the parents after the separation the court has to consider the same.
In another recent landmark cases, the court pronounced to expand the ambit of ‘Welfare of the Child” and cover aspects like the upbringing, economic well being of the guardian, child’s ordinary comfort, contentment, health, education, etc. (12)
10 Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311.
11 Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413.
12 Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42.
United States Laws of Child Custody
In the United States, although Child Custody is governed by the US Federal Laws (13) there every state also has its own set of laws governing the future of the child when the parents get divorced.
For example, in New York, in the cases where the parents get divorced or separated and they have a child whose age is below 18 years old, both the parents of the child have to mandatorily ask for the custody of the children and then it is up to the court to decide the custody. (14) The laws are such so that the state can ensure that a child never be considered as a liability to the parents that they want to get rid of by separation.
In New Jersey, when it is found that a couple has a child together and they want to get a divorce or separate they have to go through a mandatory Parents’ Education Program before granting a divorce per the Parent’s Education Act to ensure they realize the consequence and effect of the separation on their child. (15)
But apart from the slight difference in the legislations Child Custody Laws in the United States is governed by the Uniform Child Custody Jurisdiction Act. (16)
There is a fundamental difference between the people and the societal norms between the United States and other European countries and India. According to the culture and societal norms of India, a couple first needs to get married, and then they are allowed to have a child, although there is no specific law backing up this tradition. But in the US or other European countries, there is no tradition or norm compelling people to get married to have a baby.
Now when to person gets married they technically enter into a contract with each other and hence there are certain and binding responsibilities of both the person regarding the future offspring.
13 28 U.S.C. § 1738A – Full Faith and Credit Given to Child Custody Determinations
42 U.S.C. § 651 – Child Support Enforcement Act 25 U.S.C., Ch. 21 – Indian Child Custody (See especially Subchapter I)
CRS Annotated Constitution
14 Tebano, Maria. “Child Custody and Visitation Rights” (PDF). Tebano & Associates, PLLC. Retrieved 9 May 2017.
15 New Jersey General Assembly. “N.J.S.A. 2A:34-12.3”. Statutes of New Jersey. New Jersey.
16 Adopted in all 50 states plus the District of Columbia.
Hence, in case the parents decide to get divorced or separated they cannot abandon their child and both of them have a right to custody of the child.
Whereas, in the US or other European countries as there is no obligation to marry to have a child it is often observed that after a certain time either of the parents start considering a child as a liability and try to abandon them by splitting up with his/her partner and as there is no marriage or no legal obligation towards the child it is easier to do so. (17) That is why the US laws or the European Laws tries to prevent the separation of the parents with utmost importance in the first place along with making the parents feel responsible and caring towards their own child. (18) Hence, the separation or child custody laws are stricter in those countries, and the court if it cannot prevent the separation from happening they go through a long process of scrutiny and analyze all the aspects to ensure “the best interests of the child” (19) before finally deciding the custody of the child. (20)
We observe although the Child Custody Laws are different on the basis of religion, territories, and even countries but all around the world one aspect is common and regarded with the utmost importance while deciding the custody of the child which the all-around growth, development, and wellbeing of the child. All the laws regarding child custody after a divorce or separation have one single goal which is the child gets the least possible affected due to the separation of his/her parents.
17 “Custody & Parenting Time (Visitation)” (PDF). California Courts. Judicial Council of California. Retrieved 16 May 2017.
18 “Determining the Best Interests of the Child” (PDF). Child Welfare Information Gateway. Children’s Bureau. Retrieved 16 May 2017.
19 The term “the best interests of the child” used in US law carries equal meaning as the term “welfare of the child” used in the Indian Laws.
20 Saunders, Daniel G. (Jun 2016). “The Need to Carefully Screen for Family Violence When Parental Alienation is Claimed”(PDF). Michigan Family Law Journal. 46 (6): 7–11. Retrieved 16 May 2017.
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