Introduction
Unfortunately, Custody of Child arises when there is a splitting of the Parents in Marriage. after the dissolution of the marriage, it is to be decided by the court that who should take the child custody. Thus, Child custody means when there is a breakup in the marriage and parents get separated from each other, the most critical question arises and that is ” who should take care of the child”? to whom the child will be given. but this is decided by the court and a child has to go tremendous tiring legal process. in all these circumstances, court keeps in mind the best interests of the child. then after the court decision whoever is the child given, it is held to be the person given his or her child custody.
Therefore, the person who can take better care of the child’s educational, medical, emotional, social needs is given the child’s custody. Thus, child custody is an establishment of a legal nexus or relation between the parents and a child.
Laws Revolving Around Child Custody
There are several personal laws like Hindu law, Muslim laws, and Christian law.
CHILD CUSTODY LAWS UNDER HINDU LAWS– Custody of a child under Hindu laws are given in Hindu Marriage Act, Hindu marriage Act an Hindu Minority and Guardianship Act, 1956.
- Under Hindu law, the custody of child is generally given to the mother of the child if the child is under the age of 5 or minor child.
- The child above nine years is independent to make decision or to make choice.
- It is not a hard and fast rule but still in existence that father gets the custody of older boys and mother gets the custody of the older girls and it is primarily decided on the basis of child’s interests.
- A mother who is said to be proven that she is avoiding or ignoring the child and mistreating the child should not be given custody.
Now there are 3 classifications given when a child is born out of the wedlock.
- Imposition – the custody of child changes from time to time. In this the youngster’s opinion is held to be important.
- Alteration -in this also it changes from time to time. If a father is having a custody and it is in good terms then he will continue to take the child custody. and if the mother is taking good care of the child and it is sure that the future is going to be bright. Then she will continue to take that.
- Revocation – it means that court can in between call back its decision for instance, if a father has been given the child custody, and it is found out that he is not taking good care of the child, the court at that time only revoke its decision and offer the custody to the opposite party.
Hindu Minority and Guardianship Act
Earlier it was not defined what is guardianship in dhramshartras . it was established by the rule of the courts that father is the natural guardian of the of the children, and after his death, the mother is the natural guardian of the children. now in modern time, the Hindu minority and guardianship act 1956 very well defined the need of the paternal rights without compromising with the equality and keeping the child ‘ s interest at the peak. Custodial matters of the child are decided according to the natural guardian and natural guardian is defined in the section 6 of the Hindu marriage act.
There are only three natural guardians according to Hindu marriage act and that are
- For a legitimate boy or a girl, the father, and after father, the mother, provided that the custody of a child less than 5 yrs. of age will be with the mother.
- For an illegitimate boy or a girl, the mother, and after mother, the father.
- For a married woman, the husband.
Under this act, the will and the choice is considered to be essential. court before deciding the matter on whom should be the child given should consider following things
- Take into account the wishes of the child concerned, and assess the psychological impact, if any, on the change in custody, after obtaining the opinion of a child psychiatrist or a child welfare worker. (Mamta vs.ashok jagannath bharuka;2005)
- If the mother is living with the stranger then the Custody is given to the Father.
Custody under Mmuslim Law
Under the Muslim Law, the father is held to be the natural guardian in Shias also and Sunnis also. even after the death of the father, a mother cannot be treated as a natural guardian. However, the father’s exclusive right of guardianship is only extended to the minor and legitimate child but not to the illegitimate child. Muslim law is quite liberal towards women as the mother is although not qualified to the natural guardian yet she is qualified for his/her custody. (Gohar Begum vs. Suggi; 1960) under the Sunni law, a father has the power of appointing a testamentary guardian or custodian. if not the father and his agent then his grandfather can appoint. and under the Shias law, fathers power will come intro existence if and only if in the absence of grandfather. but mother has no authority under both Shias and Sunni law that they cannot acquire the power.
Custody under Christian Law
Both the parents are held to be the natural guardians.
Christians generally deal with law of The Guardians and Wards Act, 1890. it is a universal law which deals with custody of the child specifically. section 17 of this act impose the liability on the courts to appoint the guardians.
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