CHILD CUSTODY LAWS IN INDIA

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THIS ARTICLE WAS WRITTEN BY KEERTHANA GEDELA A STUDENT OF DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY.

Taking custody of a child is indeed a difficult task among divorced parents in now India. The court looks into each and every aspect of a parent before granting custody of a child to that parent. It’s not only on the favouritism of the child towards a parent but the financial and mental stability of the parent that is mostly considered by the court when granting custody. If the parent is either bankrupt or financial unsound or mentally un-willing (mentally incapacitated or instable) then the court generally rejects the plea, because for the court, it looks for the welfare of the child. A child should be grown up in a healthy and well off environment. And if the parent is unable to bring his/her kid in such an environment then it deems unfit for the parent to raise the kid under his/her hands. As of now in the contemporary India, there are few laws working on the custody of child. Some of those are:

  • Section 26 of the Hindu marriage act, 1995 – deals with the custody and maintenance and education of a child. A limitation of 60 days is given to dispose a child in a pending decree on him/her.
  • Section 38 of the special marriage act, 1954 – deals with religious beliefs of the parents. If two parents have conflicting religious beliefs then the child will follow the one under whose guardianship he/she is under;
  • Section 41 of the divorce act, 1869 – deals with a parent who follows Christianity. If the parent believes Christianity then section 41 of this act is followed to decide the child custody.
  • Section 42 and 43 of the divorce act,1869 – deals with the custody of the child after passing the decree of divorce or separation.
  • Section 6 of Hindu minority and guardianship act – deals with minority. Especially when a kid is a minor and specifically a Hindu minor. It says that guardians can only be biological and not step parents. Therefore, only the biological parents are given a custody and not step parents.

Though it’s under the discretion of the court to look into which parent is appropriate to raise the kid, “the best interest of the child” also is sometimes taken into consideration.  The protection and safety of the child is the most important criteria for the court to decide which parent it should hand over the child to and from this we can squeeze out that maintenance is not the only decisive factor for the court. But it would be more elaborate for me to explain you point by point over this.

WHAT ARE THE DECISIVE FACTORS FOR THE COURT WHEN GIVING CUSTODY?

It’s imperative for a court to decide which parent holds the best score in maintaining a child in all aspects. For this, the court looks through each and every detail apart from financial conditions. Some of which are:

  • EASE OF COMMUNICATION AND COOPERATION – If for example , there is a stoic ,non- communicative parent in the family which the child spoke or speaks very less with, then that means the understanding between the two of them( the child and the parent) is also very low. Hence, the parent cannot be the right choice since the parent lacks the mind of understanding of the kid, and moreover the kid would face trouble in expressing himself/ herself in the coming days thus creating more barriers between them.
  • UN-WILLINGNESS – The parent can voluntarily deny the custody of the child, because of some other matters. There may be reasons of hate, rejection and disapproval. Hence, the court would not hand over the custody of the child to such parents who overtly deny taking over the custody of the kid. Sometimes there might be parent, who hate the kids, but have no other choice than to raise the child, this may also further lead to abuse, brain washing, manipulation, emotional abuse, sabotage sometimes leading to parental alienation syndrome and this might bring a great injustice to the child.
  • FINANCIAL SITUATION – The court should necessarily compare the financial situation of the two parents.
  • SAFETY AND PROTECTION – There should always be a question as to under whose guidance would the child be safe and sine.
  • PREREQUISITES – If the child is a month’s baby, then the court gives the custody of the child to the mother. And this is based on requirement and after that the other parent can file another claim for custody.
  • HISTORY OF DOMESTIC VIOLENCE – it’s the obligation of the court to find out if there is any consistence of history of domestic violence in the family. And if there is the parent isn’t given the custody.
  • FREE INTERACTION – If the child interacts freely with his/her siblings then its fine, but if it doesn’t then the terms are not good between them, the court may not give the custody, and in fact, it believes that it shouldn’t give.
  • HEALTH CONCERNS – the health of the parents are also seen. If the parent isn’t healthy both mentally and physically, then he/she becomes incapable under the court of law to maintain a child. If you still want then you have to prove satisfactorily that you are fit in maintaining the child.

The court takes critical analysis when making decisions over the custody of the child and taking notice in all facets is imperative and important. When it does so, then only, it can grant the child a healthy, safe, convivial and cooperative atmosphere. The safety and protection of the child is the main and primary concerns and not the divorce in the court of law generally, because the life of a child is decided there when a divorce is awarded, and it’s in the hands of the court to give a good and satisfactory life to the kid. Though the parents can always have the option o f shared custody but now it has more become from ‘ right of parent’ to ‘right of child’. Non-custodial parents can still have the option of access to their kids during vacations, weekends, once in a day or week or months, or some special occasions or some other other events. And since the rights became more of a duty, the parent is expected to discharge them obligedly over the time. The court being a parens patriae is the ultimate protector of the interests of the child ,whatever financial, social and other needs required by the child’s can be claimed in here. Be it income, maintenance and property. The court decides them, since, it’s the only and sole protector and legal guardian of the child.

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