28 Aug Custody Of Children After Divorce
After dissolution of marriage, the child’s mental being is affected the most. Therefore, while keeping in mind the right of parents to the custody of a child, the Indian law also holds the child’s welfare as the most crucial factor of consideration.
If divorce is inevitable, bitter battles cannot be the option to settle issues regarding child custody and access custody of a child. When the parents divorced, the only question remains that to whom the child will physically reside since both parent continue to be natural guardians.
The custodial parent will be the primary caretaker responsible for emotional, medical and educational needs of the child and non-custodial parent who does not loss the right over the child will have the right to access.
Over the years, there is a shift from custody and access be the ‘right of a parent’ to being ‘the right of a child’. The non-negotiable principle on which custody is declared is the best interest and welfare of a child who will best serve the child with emotional educational, social and medical needs.
The law pertaining to the custody of children in India is determined by the Guardian and Wards Act,1890 along with Hindu marriage Act 1955, special Marriage Act 1954 and divorce act 1869. However it may also vary from case to case depending upon the religion of both the parties as the personal laws for every religion is different. Hindu, Jain, Buddhist and Sikh are governed by the Hindu Minority and Guardian Act,1956 whereas Muslims and Christians are governed by their respective personal laws.
Under the respective Act, the court has the power to grant either of the parents either permanent custody or interim custody or mere visitation rights.
In India, the custody of child depends upon these personal laws read with the Guardians and Wards Act 18901. The foremost thing is to allot the custody of a child to seek welfare and so if required the other personal law rules and rituals can be set aside. The Guardian and wards act, 1890 is the universal child custody and guardianship act in India regardless of the child religion. However undertaker principal of India also sentence laws pertaining to different religion. The Guardians and Wards Act is Central legislation enacted by the Parliament in the year 1890 with a view to protect the interests of the minor and to grant security to the minor himself and the property of the minor. The Act is of universal application irrespective of the religion dealing with guardianship of children.
A guardian is someone who appointed to take care of the minor or property of that minor or both. The protected individual known as the ward is considered legally incompetent of acting for himself or herself; examples are a child or individuals suffering from a severe illness. However, an important point to be noted is that irrespective of the customs of personal laws, any parent who wants custody of the child and cannot reach a settlement has to seek custody separately from the court.
Hindu law2 as well as secular law
The custody of the child under the age of five is usually awarded to the mother. In most of the cases, father gets the custody of the older boys and mother of the older girls.
To deal with matters related to the custody of the child under the Hindus law, there is an additional act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Irrespective of caste, community or religion, there is a secular law to deal with matters relating to appointment and pronouncement of guardians. However, the Indian Courts in certain matters will give consideration to the personal law of the concerned parties.
At the time of determining the question of custody of children, the court should consider both the provisions of the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act 1890 in the welfare of the minor and not in derogation to each other. The word welfare means to include the moral as well as physical well-being of the child and also have regard to the ties of affection.
A new concept that has been evolved wild negotiating diverse settlements that both parents will have legal custody but one will have the physical custody and will be the child’s primary care taker. The concept of sole custody is also prevailing under Hindu law in which one parent has been proven to be an abusive and unfit and other parent is granted custody also under Hindu law and the choice of a child above the age of 9 is considered. In case of male children above the age of 16 years and in case of the female above the age of 14 years, the courts considered the view of them which has been taken in the case for their welfare.
In the judgment of Venkataramma Ayyangar v. Thulasi Ammal,(1949),2 MLJ 802, the court held that if the children’s wishes found to induced by wholesale persuasion and were even tortured then the court has to be disregarded.
Only the mother holds the ultimate right to seek her child/children’s custody under the Right of Hizanat as long as she is not convicted or found guilty of any miss conduct. The father’s right of Hizanat is applicable only in the absence of mother. The matters relating to the custody of minor children shall be deemed to be under the provision of the Muslim Personal Law (Shariat) Application Act, 1937. It has been upheld by the Hon’ble High Court of Delhi in the judgment of Mohammad Nihal vs. State that concerning matters pertaining to succession, inheritance, marriage, divorce, guardianship, etc., the Muslim Personal Law (Shariat) shall be applicable if the parties are Muslims.
If divorce is inevitable, a crimonious battles cannot be the option to settle issues of a child custody and access.
Custody of a child only implies to whom the child will physically reside with. There is no provision relating to the custody of children under Christian law but the matters are well solved by The Indian Divorce Act, 1869 which is applicable universally.
The Indian Divorce Act, 1869 contains provisions concerning the custody of children. The custody of children provides under section 41 of the said Act with the order of separation in a suit. The court may from time to time in a suit of a judicial separation make such interim orders before making its decree, as it deems fit with respect to the custody, education, and maintenance of the minor children, the marriage of whose guardians is the subject of such suit, and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the said Court.
Both the parents have an equal right to the custody of child. However who get the custody is still a question which the court has the power to decide upon.
Moreover when it comes to personal laws, statues are constructing as compared to structural enactment in the form of The Guardian and wards act 1890 which hold the welfare of the child as the Paramount importance and thereby the court of competent jurisdiction endeavours to strike a balance between the two and as because the custody of the children is given to one parent that doesn’t implies that the other parent cannot be in contact or see the child.
Kinds of child custody arrangement in India
- Joint Physical Custody: A new concept that has introduced while negotiating divorce settlements. Both parents will have legal custody, but one will have the physical custody (child resides with him or her) and will be the child’s primary caretaker.
- Sole Custody: One parent has been proven to be an abusive and unfit parent and the other parent is granted custody.
- Third Party Custody: Neither of the biological parents is given custody of the child. Instead, the child custody is granted to a third person by the court.
Even though the court has taken into consideration the personal law of the parties at the time of custody of the child but the child’s welfare is of paramount importance and cannot be over-ruled by the personal law because the welfare of the child always is the deciding factor.
However, at the same time while deciding the custody of the children, the personal law cannot be totally sidelined as the personal law would be an essential feature of the welfare of the child and should also be taken into consideration.
The good news is that although divorces are painful for children, long-term harm is not inevitable. Most children bounce back and get through this difficult situation with few, if any battle scars4.
 Guardians and Wards Act,chapter-2 ,5-19 ,(1890).
 Hindu Marriage Act, S- 26,(1855).
 Aayesha Rafiq, Child Custody in classical Islamic Law and Laws of Comtemporary Muslim World, Muslim Law Journals, http://www.ijhssnet.com
 Nainshree Goyal, Who gets the Custody of a child after Divorce and why?, Indian articles, http://the better India.com