Who has child custody after divorce?
What are Child Custody Laws in India?
After a marriage breaks down or ends up in separation of consorts, the person who gets affected the most is the children who’s born out of the marriage. therefore, while keeping in mind the right of parent’s to the guardianship of a child, the Indian Law, holds the child’s weal as the most pivotal factor of consideration while deciding upon who gets the guardianship of a minor child.
Which Factors Constitute Welfare of A Child There are three factors which constitutes the weal of the child:
- Ethical parenting of the child
- safe-deposit box- keeping of the child
- Good education to be communicated
- profitable well- being of the guardian
Who Has A Right On Minor Child After Divorce In India?
Both the parents have an equal right to the guardianship of a child in India. but who gets the guardianship of a child is still a question which the court has the power to decide. and also, when it comes to particular laws the statues are clashing as compared to temporal enactment in the form of The Guardian and Ward Act, 1890 which holds the weal of the child as the consummate significance and thereby the court of competent governance bid to strikes a balance between the two. And as because the guardianship of the children is given to one parent that does n’t implies that the other parent can not be in contact or see the child. The courts in India makes ensure that the child gets attention and love of The child father and mother. The court gives the other parent visit rights of which the conditions are determined by the court.
Kinds of Child Custody Arrangement In India A court of competent governance in India primarily orders the guardianship of children in the following three forms :
1. What is Physical child Custody?
Physical guardianship when awarded to a parent, implies that the minor will be under the custodianship of that parent with journal commerce and visit with the other parent. The target behind such a guardianship award is to give a better life to the child in a safe and fulfilling terrain and also makes sure that the child isn’t deprived of the affection of the other parent during his or her constructive times.
2. What is Joint child Custody?
Courts have to consider not only the child’s safety but also the best future case of the child. Even if joint custody of a child is desired by the child, Indian courts have to see whether it is in the best interest of the minor child and its parents, it does not mean that both the parents should live together because of the child. By keeping the child as their guardians, both the parents will take care of the change in the life of the child so that the child can lead a better life again. A child’s dynamism varies between parents by a few days or a week or indeed a month. These benefits ensure that the child gets the attention of both parents on the one hand and on the other hand the courts want the parents to be a part of their child’s life.
3. What is Legal child Custody?
Legal guardianship of a child doesn’t inescapably entails having the child with the parents orvice-versa. It principally means that the parents are granted the legal guardianship and they can take every decision for the child likewise education, medical treatment, etc. In utmost of the cases, legal guardianship is granted to both the parents together but in certain cases where the divorce is messy and parents don’t agree with each other, also in similar cases the court subventions legal guardianship to any of the one parent.
How To Know The Type Of Custody Granted?
Till the time the order of the court doesn’t especially mentions the conditions bandied over, the parent who’s awarded the guardianship of the child gets the physical guardianship as well as legal custody. However, it’ll be mentioned in the order of the court and will be made clear to both the parties, If there’s any other kind of guardianship awarded.
Who Can Claim guardianship of A Child?
The guardianship of a child can be claimed either by mama or the father. In any of the case where the two of the parents aren’t in the picture due to operation of some other laws or departed also in similar situation, the motherly or the paternal grandparents or any other relatives can claim guardianship of the child rigorously out of compassion towards the child. In numerous cases, the court appoints the third person as the guardian of the child.
Who Has The Priority Claim To The Custody of A Child?
Although both the parents of the child have approached the courts as to who has the right to the child, the Hon’ble Supreme Court and other courts in India have consistently stated that rather than appointing the guardian of the minor child, it should be considered that the property of the minor child is not lost.
Under Hindu law and as well as temporal law, the guardianship of the child under the age of five is generally awarded to the mama . In utmost of the cases fathers gets the guardianship of the aged boys and mama of the aged girls. also, child’s interest is the main criteria and the choice of the child above the age of nine is considered by the court. Wherein a mama if set up to ill- treat and neglect the child isn’t given guardianship.
Who Gets The Custody Of A Minor In Case The Mother Has A Weaker Financial Condition As Compared To The Father But The Father Has Married And Has kiddies With Alternate Marriage? In similar cases, the mama can not be discarded as the guardian only because she earns lower than the father. Well, in similar case the father of the child has to give for the child’s conservation. also, the principle of law says that a step- mama has primarily obligation of affection and attention towards her own children and the father would remain out for work all day, and therefore, the mama is proved to be a better guardian for the minor child.
Legislations Governing Child Custody Under Different Laws In India India being a temporal nation has different persuasions to follow and therefore every religion has their particular law set for child guardianship which determines the process by which a parent seeks the guardianship of their child.
Custody Under Hindu Law
The laws under Hindu Law videlicet, Section 26 of Hindu Marriage Act 1955, Section 38 of Special Marriage Act 1954 and Hindu Minority and Guardianship Act 1956 mentions the rules and regulations set for seeking child guardianship.
Let us bandy about them in details.
a) Section 26 of Hindu Marriage Act 1955 It deals with the conservation, minding and education of child and only when both the parents follow Hindu religion, the guardianship of child gets validated. Under this act, the court can pass orders, judgements, emendations,etc. at any point of time in respect to the conservation of child and dispose of the pending decree within the 60 days from the date of service of notice.
b) Section 38 of Special Marriage Act 1954 This act validates the guardianship of the child in case both the parents belong to different persuasions or have accepted a court marriage. Under this act, the court can pass orders, judgements, emendations,etc. at any point of time in respect to the conservation of child and dispose of the pending decree within the 60 days from the date of service of notice.
c) Hindu Minority and Guardianship Act 1956 This act allows only natural parents to seek the guardianship of their minor child handed that he she is a Hindu.
Custody Under Muslim Law
Under Muslim law, only the mama has the right to seek his/ her child guardianship as per Right of Hizanat until she isn’t set up shamefaced of any misconduct.
The guardianship of a child under Muslim law is with the mama until the child has attained the age of 7 times for a boy and until she has attained the age of puberty or maturity for a girl.
The guardianship of the child remains with the father until the boy has attained the age of 7 times and the girl has attained the age of maturity or puberty as because the father is considered to be the natural guardian.
Custody Under Christian Law
The Christian religion needs to follow the laws and reforms set under Section 41 of Divorce Act, 1869 for the child’s guardianship. Also, in addition to this law, Section 42 and 43 of the same holds the right to decide upon the child’s guardianship after the judgement with respect to separation has been passed. The child is given to a person who garçon better and is proved to be a batter guardian for the child and the claim can indeed be denied if the court finds that both the parents are unable of giving a proper atmosphere to the child.
Custody Under Parsi Law
The guardianship of a child under Parsi law is dealt with the vittles of the Guardians and Wards Act, 1890. Its main end is the weal of the child and can put anything to stake to make sure that the weal of the child is verified.
Conclusion
In India, the guardianship of a child depends upon the particular laws and read with The Guardians and Wards Act, 1890. The foremost thing is to lot the guardianship of a child to seek weal and so if needed the other particular law rules and rituals can be set away. Preferences are given to the parents and the child but it’s the court who takes the final decision regarding the guardianship of the child.
