The literal meaning of the term custody is, protective care or guardianship of someone. The broad question here dealt with is when a married couple having a child decides to dissolve the marriage due to whatever reason, through divorce proceedings or judicial separation, with whom the child will reside.
While giving custodial rights the Family Court takes utmost care and concern regarding the interest of the child. As this process associates with all the aspects of a child below 18 years of age like his lifestyle, education, medical well-being, upbringing, ethics and overall development, the Court concerns a broad arena before taking any decision.
All the above-mentioned duties rest with the custodial parent and the non- custodial parent holds the right to meet the child whenever he/she wishes to. The court while giving decision ensures that the child doesn’t gets deprived of the affection of any of the parent. Certain conditions are determined by the court for the parent who avails visitation right.
THE GUARDIANS AND WARDS ACT, 1890
The literal meaning of the terms in the acts are- ‘guardian’: is a person who is endorsed with the duty of care of a minor or of property or both, wherein, ‘ward’: is the minor who is taken care of by the guardian.
According to the act it is for a child/minor who is unable to maintain himself/herself and needs protection and guidance. This act is considered to be as universal and applies to any kind of custody process irrespective of religion of the child.
It is sought to be of utmost importance that the court takes the child’s age, sex, religion, relation with the guardian, behaviour of the guardian and the preference of the child at the time of deciding the custody. It is considered that not only monetary and living welfare is to be taken care of but along with it moral and ethical values should also be taken into consideration so that the upbringing of the child doesn’t get hampered.
“The Law Commission in its 263rd report has held that the desire to protect children must be based on a true interpretation of their best interest.”
India being a secular country also in its provision has laws sanctioned with respective religious views and in the custodial process these laws are also taken into consideration while decision making. Generally, choice of choosing is given to child above the age of 9. Older boy child’s custody is given to the father and that of the older girl child’s is given to the mother. But pertaining to this situation the Court is flexible enough to judge both the parents and anyone found out to be incompetent or of neglectful nature is barred from having the custody of the child. In any situation the child’s welfare and interest is taken up by utmost care and consideration.
There are a several religious laws which deal with the right to custody in their own way:
Child Custody Under Hindu Law- Hindu Minority and Guardianship Act, 1956.
The act holds good only when the parents are the biological Hindu parents of the child born to them. The custody of any child below 5 years of age is given directly to the mother; the Supreme Court on these cases is of the view that the child must not be treated as an object or property and that the only focal point of consideration is the welfare of the child.
Section 26 of the Hindu Marriage Act, 1955 deals with the maintenance, education and welfare of the child and validates the custody only if the parents follow Hindu religion. The court can pass immediate interim orders or judgements or amendments related to the custody and can dispose of the case.
It also deals with the fact that the step parents cannot seek custody of the child.
One exception here is Section 38 of Special Marriage Act, 1954, which validates the custody of the child even if the parents belong to different religion or have undertaken court marriage.
Custody Under Muslim Law
The sole custody is given to the mother under the Right of Hizanat in the Muslim Law, the father gets the custody under Hizanat only when the mother is found to be incompetent.
The sub- laws have different provision for custody, for instance;
- Mother gets the custody of boy child till the age of 2 and for girl till the age of 7, under the provisions of Shia Law.
- Mother is given the custody of boy child till the age of 7 and for girl till she attends puberty, under the provision of Hanafi Law.
There are certain terms and condition that are too be maintained for custody, that is,
- In case of divorce the custody lies with the mother, but if she goes for remarriage the custody of the child is transferred to the father.
- The things of utmost importance that is the interest of the child is also well sought and cross-checked to avoid falsity.
- If either of the parents are found to lack ethics, change religion, are incompetent or become unsound minded seize the right to get the custody of the child.
- For a woman if she marries within prohibited relationships, she is barred from having the custody of the child.
Custody Under Christian law
There is no any particular law pertaining to the custody of a Christian child. In these case’s the decisions are taken as per the Indian Divorce Act, 1869 and the Special Marriage Act, 1954. Custody is only limited till the physical residence of the child and both the parents continues to be natural guardians.
Custody Under Parsi Law
The custodial rights are governed by the Guardian and Wards Act, 1890 and the Parsi Marriage and Divorce Act, 1936. The child stays with both the parents in 6months term basis and during the whole period the other parent is allowed to meet the child on weekends and expenditure and the maintenance of the child is split equally.
The Indian Court Grants Three different types of Custody process to the parents to decide upon-
The first category is Physical Custody, in this one of the parents is given the sole right of residing with the child but this doesn’t at all mean that the child is deprived of the other parents’ affection and care. The other parent has the right to meet the child on weekends.
The second category is Legal Custody, which means that one of the parents is given the sole right to take all the decision for the child till he/she is 18 be it educational, medical or any other thing. The basic difference between the physical and legal custody is that in legal custody staying with the child all the time doesn’t count. Generally, the Courts be of the view of granting legal custody to both the parent but in cases where the grounds of divorce are problematic, the competent parent is given the legal custody.
The third category is Joint Custody, this category allows both the parents to have legal and physical custody of the child and they get a chance to be a part of the child’s tender age and growth. Both the parent takes turns and the child stays with both of them for certain days, months in intervals. The child doesn’t get deprived of the affection and care of either of the parents.
Can custody be given to a non-earning mother?
The direct answer to this question is yes. As from precedents it is seen that during the tender age of the child it is the mother who gets the custody. So even when the mother is not earning, she can claim for the child’s maintenance from the earning father. Only after the child attaints an age where he is capable of taking his decisions, he/she can be provided with the option to choose who to reside with.
A Big Question pertaining to these Custodial Laws and Rights is that what are the conditions/ rights of a Father for getting custody of the child?
The facts and the basis of getting custody can vary from case to case.
The father can get the custody in the following instances-
- If the mother gives up the child’s custody.
- If the father proves the incompetence of the mother on the basis of her ethical and moral values or show proves of her being of neglectful nature or unsoundness of mind.
- If the father proves that if the child stays with the mother the upbringing of the child will be hampered because of the dark past of the mother.
- And one of the ways, is with the will of the child the father can get the custody.
Who Eventually Gets The Custody Or Who Can Claim Custody?
Either of the parents can claim for the custody of their child. While giving the custody the court seeks for the interest of the child on priority basis and along with it keeps in mind all the aspects for the well-being of the child irrespective of all the claims that either of the parties make. In the absence of the parents or any faulty appearance the Court gives the custody either to the maternal or parental grandparents. And if not them then the immediate relatives who are seen to be truly intended with the child and not the belongingness entitled with him. Ever such situation arises the court itself assigns a guardian to look after the child.
There are some interesting rulings in these cases- Supreme Court Bench headed by Justice Vikramjit Sen ruled that an unmarried mother doesn’t need the consent of the biological father for getting the sole guardianship of the child.
The Delhi High Court ruled that a child brought up by a single mother without the involvement of the father can apply for passport only with the mothers’ name in it.
In todays’ scenario the custodial right is seen as a ‘right of the child’ and not as a ‘right of the parent’. In any case the safe surrounding and well- being of the child is given more preference than the economical background of either of the parents.
It is generally seen that the child of the age of 5 or below is generally handed to the mother. However, child above 9 years is given the right to choose. Getting custody on being father of the child is a slightly tough task. It is evident that any child is more attached to the mother than the father.
For the father to get custody on basis of the interest of the child becomes utmost important. Building of strong bond with the child, being there in times of need, providing care and well-being are some of the ways which help a father in winning custody.
The non- custodial parent has every right to meet the child on weekends or monthly. No access can be denied to the parent. He/she can meet his/her child anytime they wish to but keeping in consideration the parents’ and the child’s convenience.
The parents also have the option of aggreging for payments for the child’s education, medical well-being and all the other aspect, as a wholesome amount or varying depending upon the expenses.
In any case with the custody of the child the Court becomes the ultimate guardian of the child. All the property or any other thing belonging to the child is protected by law. Any decision can be taken or taken down with the consent of the child and keeping the child’s interest in consideration.
Analysing the whole scenario, we can conclude with the fact that no legal or preferential right holds good when it comes to the question of seeking the well-being of the child. The only one entitled to have the custody is the parent who can ensure the calm and prosperous environment for the upbringing of the child.
Isha Sinha, 1st Year,B.A,LLB,Chandigarh University.