This article is written by Harshit Khandelwal, 2nd year Law student currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, the author discusses the various Indian laws regarding the custody of the minors and on the basis, custody is given to the parents.
This article deals with Indian laws for child custody. Children or minors are the ones who are most affected when their parents get separated or divorced. They’re not only affected mentally but also their lifestyle and future are additionally affected due to the separation of their parents. There aren’t any specific laws followed while deciding the custody of minors, courts aren’t strict while making their decision. The courts decide the custody by keeping in mind the simplest interest of the minors.
Different personal laws apply to the minors of various religions, but still, the Guardians and Wards Act, 1890 applies to every minor notwithstanding their religion or caste.
Guardians and Wards Act, 1890
This act applies to any or all the minors regardless of their caste and religions. This act deals with the rights which a guardian has for the custody of a minor. Someone has to prove that he/she is the guardian of the minor to successfully take his/her custody. If someone isn’t the guardian of the minor and desires the custody of the minor, then he/she should first apply to become a guardian, and so can claim the custody of the minor.
a) Difference between Custody and Guardianship
Custody and guardianship and completely different from one another. Custody could be a narrower concept as compared to guardianship. Custody merely means taking care and therefore the normal upbringing of the minor. Whereas guardianship refers to the rights of an adult person over the property of a minor.
b) Parens Patriae Jurisdiction and Welfare of a Minor
Paramount consideration should be given to the welfare of the child at the time of deciding who should lean the custody of the minor. The rights of the parents aren’t given more weightage whereas the welfare of the child is given more weightage. Before making decision judges take into account the appropriate environment, the desire of the child, capabilities of the parents to take proper care of the minor’s needs and requirements.
Section 13 of the Hindu Minority and Guardianship Act, 1956, states that to urge the custody of the minor one must prove that it’ll be within the best interest of the minor.
In Jijabai v. Pathankan, the court refused to present the custody of minors to his father because for an extended time he wasn’t taking care of the minor. The court while taking the decision considered the welfare of the minor and gave custody to his mother.
c) Interim Custody
This deals with the facility of the court which may give the temporary custody of the minor by making interim orders. Till the court proceedings for the guardianship goes on the court has the facility to create orders for the interim custody of the minor.
Factors to be Observed for the Welfare of the Child
a) Gender of the child
According to the Guardians and Wards Act, 1890 gender is one amongst the aspects of determining the welfare of the child. No provision within the law bounds the court to grant the custody of a female offspring to a female guardian. The importance is going to be given to the child’s welfare.
In Jitendra Arora v. Sukriti Arora, the court gave the custody of a 15-year-old girl to her father because it had been her preference to live with her father, and also the court finds it to be in the best welfare of the minor.
b) Age of the child
Another important aspect that should be taken into account before deciding the custody of the minor. Courts usually give the custody of a minor under 5 years of age to her mother because she is the one who can take care of his/her during this age. The Supreme Court also observed that it’s not necessary to offer the custody of a minor to his/her mother if the court thinks it’s not within the welfare of the child.
c) Prior or Present relationship
Another aspect which is taken into account while deciding the custody of a minor is their present as well as the prior relationship with the one that is seeking the guardianship and custody of the minor.
For E.g. Once in a very judgment, the court gave the custody of a minor boy to his uncle because he was in good terms with the child, and it had been best for the child’s welfare as well and didn’t give the custody to his father because he wasn’t in good terms along with his child.
Different Types of Child Custody in India
1. Legal Custody
Legal custody doesn’t necessarily mean having the child with his/her parents. It generally means that parents are given the legal custody of the child and also the parents will take every decision of the child regarding the education, medical treatment, etc. In most cases, both parents are given the legal custody of the child. Except for some cases where the parents do not agree with each other, then one of the parents is given custody.
2. Physical Custody
When this custody is awarded to a parent, it states that the minor is going to be under the custody or guardianship of that parent with time to time interaction and visitation with the other parent. The main reason behind such custody is that the minor mustn’t be deprived of the attention and affection of the opposite parent and to convey a much better life to the minor during adolescence.
3. Joint Custody
This custody means the minor will live with both the parents turn by turn which may be a week or a month, so that the child will get the eye of both, and can be best for the welfare of the child.
This article states that custody of a child depends upon the personal laws as well as the Guardians and ward’s act, 1890. Courts emphasize the welfare of the child and solely on that basis the custody or guardianship of the child is given. The final decision of the custody stands with the court only but still, preference is given to both the parents and the child.
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