Child Custody comes into play when a couple decides to take divorce and get separated from each other when things go unbearably disturbing or when things go beyond repair in a relationship. When a couple decides to end their marriage, it comes with a lot of responsibilities like the custody of the child that was born out of the marriage and the legal right to decide who gets the custody of the child becomes a matter of concern and a big decision.
Child custody cases and situations will arise during divorce, annulment, separation, adoption, or parental death. After a couple who also has a responsibility as parents, get divorced, the child(ren) should be provided with a permanent residence with either parent. When the child is under the age of 18, the benefits of the children are given precedence over the needs of the parents.
The parent’s financial, mental, and social well-being will be assessed to determine who is best suited to raise a child. Children over the age of nine will be given the option of deciding which parent they want to live with. However, depending on the circumstances of the case, both parents will be given equal opportunities to care for the child. Child custody issues have risen dramatically during the Corona Pandemic, as divorce rates have skyrocketed during the lockdown. Since the COVID-19 lockdown, the number of women-related issues and divorce cases have increased threefold. It can be seen that the number of cases per month has increased from 1000 to 3000, and the demand for advocates has also increased.
Types in child custody In india
- Legal Custody: This type of custody does not require the parents to live with the child, but the parents are given the duty and opportunity to make all major decisions in their child’s life, such as medical treatment, educational choices, and so on. Almost always, both parents divide the duties and responsibilities, but if the divorce is not mutual and is a mess, the court will decide who gets legal custody.
- Sole Custody: This is when the custody is given to only one parent as the other one is deemed unfit to raise a child.
- Physical Custody: This occurs when a parent is granted custody and the child is placed under the guardianship of that parent. The other parent will, however, pay periodic visits. The main goal of this type of custody is to provide children with a better-quality lifestyle through child maintenance while also ensuring that they receive love and care from both parents.
- Joint Custody: This is a very common arrangement for divorced parents as well as unmarried parents. This is when the child will be given time with both the parents separately and equally.
- Grandparent Visitation/Custody: This will be done with respect to the situation of the case taking into account the best interest of the child.
The Provisions for The Custody of Child Under Indian Law
Custody of a child is governed by various provisions in Indian law. Along with the Guardians and Wards Act, 1890, various laws concerning the personal laws of the Nation have been enacted. However, the main important goal of the custody act is to look into a child’s welfare and needs, so personal laws may be set aside if deemed necessary. The Guardians and Wards Act of 1890 is the standard legal provision for cases involving child custody. Child custody cases for parents will be handled in accordance with the Guardians and Wards Act of 1890. This Act establishes general laws and regulations irrespective of the. However, In India along with the Guardians and Wards Act, 1890 the personal laws of the religions are also taken into consideration.
Custody of Child Under Hindu Law: The provisions for the custody of child or children under the Hindu law has been separated and mentioned in separate Acts;
- The Hindu Marriage Act of 1955 provides the law for passing of the judgment, orders, amendments etc. This has all been mentioned under Section 26 of the Act. It has been laid down in this Act for the child’s maintenance; the pending decree can be disposed within 60 days from when the service notice has been issued to the courts.
- In another Act called as the Hindu minority and Guardianship Act of 1956 it has been stated that the Biological Hindu parents will be allowed to ask for the custody of their children. This Act also states that children below five years of age will be given to the mothers and custody of boys and unmarried daughters will be given to father subject to exceptions.
- The custody of illegitimate children will be first given to the mother later the father.
Custody of Child Under Muslim Law: According to Muslim law, custody of the children will remain with the mother unless and until she is proven unfit in court. This method of child custody by default is known as HIZANAT. The mother’s right to the child is not absolute, and it will only be granted if it is demonstrated to benefit the child’s needs and welfare. Similarly to the concept of courts, the welfare of the child/children is the main aim and objective of Muslim Personal Law (Shariat) Application Act, 1937.
Custody of Child Under Christian Law: Because Christian laws do not separately provide for child custody rights, the Indian Divorce Act of 1869 is considered for all issues relating to Christian children and their guardianship. According to Section 41 of the Indian Divorce Act of 1869, the courts have the authority to issue orders for the custody, maintenance, and education of Christian children. In one case, the Supreme Court of India stated that all orders pertaining to the custody of minors are considered temporary orders for the time being. The court is required to change the orders in accordance with the child’s welfare as time passes.
Custody of Child Under The Parsi Law: Because the Parsis of India, like Christians, lack a separate law governing child custody, all custody issues will be handled in accordance with the Guardians and Wards Act of 1890. The Parsi Marriage and Divorce Act of 1936 allows the mother to seek support for her child or children. The court is required to issue an order for the guardianship of Parsi children within 60 days. Section 38 of the Special Marriages Act provides for child custody in cases where the parents are of different religions or had a court marriage. In these cases, the court will explain and clarify the judicial custody process and events. Nowadays, the courts prioritize the welfare of the child over the needs and desires of the parents. As it is critical to ensure that the child’s basic needs are met effectively, such as medical, educational, and other needs, the child must also experience the care and affection of the parents. The court may also change child support payments to the other parent over time based on the welfare of the child or children. It should be noted that the court is the child’s ultimate guardian, i.e., Parenspatriae. The court will take over responsibility for the divorce as soon as it is granted.