Child custody is a very sensitive issue. It is one of the most challenging aspects of divorce. An order by the court will directly impact all three: the mother, the father, and the child. Hence, it is important to understand how child custody works in India. Such rights under Indian divorce law are not easy. However, once a divorce decree is ordered, the court has to make a ruling in the best interest of the child. In such a case, the divorce affects the child more than it does the husband and the wife. Before the verdict, the court examines the claims by both the parents, who are contesting for child custody. The court considers factors that will work the best for the child before granting child custody. One thing is important to highlight here: gone are the days when the mother is favored by awarding the custody rights of the child, as nowadays the mother and the father have the same rights to claim child custody, and the court stands neutral while considering the facts presented by both parties.
What are child custody laws in India?
The Constitution of India gives legal rights to claim the custodial rights of the child/children. Parents should know well about child custody laws in India. then The mother has the right to raise and care for the child, and she is entitled to visitations with the child. But, in the case of the father, he has equal rights to raise and care for his child but does not have the right to visitation. The court reviews the social, financial, and family background, mental health, and child-friendly atmosphere in the house.
What factors does the court consider before granting child custody?
The court considers various factors that are conducive for the child before awarding custody rights to either the mother or the father. The factors include but are not limited to:
- The physical, emotional, and mental health of the child
- The willingness of the child
- Any evidence of domestic abuse—verbal, physical, or mental—will go against the parent’s claim.
- Safe-keeping and ethical upbringing of the child
- A stable and healthy home environment
- The strength of the parent-child relationship
- The parent’s willingness to hold child custody
- The wishes of the deceased parent, if any
Laws involved in child custody cases
The provisions of child custody are provided under the matrimonial statutes governed by the Personal Laws and the Guardians and Wards Act 1890 (GAWA). GAWA governs child custody matters in India along with other personal laws. The act provides for regulations and redressal pertaining to custodial issues irrespective of the religion of the parents or the child and is read along with the personal laws governing custody of minor children.
Hindu Laws: According to the Hindu Minority and Guardianship Act, 1956, the custody of all children below the age of five (5) is awarded to the mother, and in the case of a boy or unmarried girl above the age of five, the father gets the custody. Section 26 of the Hindu Marriages Act, 1955, provides for the court to pass interim orders and make provisions concerning the custody, maintenance, and education of minor children, consistent with their wishes, and also to revoke, suspend, or vary any orders previously passed.
Christian Laws: As per Section 41 of the Indian Divorce Act, 1869, the courts have the right to pass orders as to the custody, education, and maintenance of minor children in any suit for obtaining a judicial separation.
Parsi Laws: As per Section 49 of the Parsi Marriage and Divorce Act, 1936, the courts have the right to pass orders as to the custody, education, and maintenance of minor children in any suit where the subject of the suit is the marriage of the parents.
Muslim Laws: As under the Right of Hizanat, the custody of the child is always with the mother until the son reaches the age of 7 and the daughter attains puberty. The mother cannot be deprived of this right unless considered unfit.
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