Perhaps one of the most crucial issues that comes up after getting a divorce is the matter of child custody. In the majority of divorce cases in India, child custody is settled between parents themselves, without the need to go to court. However, if you are among the small number of cases where parents are unable to settle the issue between themselves, then you need to be aware of how Family Courts in India decide on custody issues.
In India, children under 18 years of age are supposed to have a legal guardian. The party who is awarded guardianship by the Court has the responsibility of taking care of the child. In some cases, the parents may share the custody of the child, but only one parent may be given the actual physical custody of the child. The court mostly bases their decisions on the best interests of the child and not always on the arguments of each parent.
(If you are getting a divorce, you may also find this article on maintenance laws in India useful).
Physical custody means that one parent is held responsible for the child’s basic/daily needs like housing, education and food. But in many cases, the non-custodial parent still has visitation rights.
Although there are some specifications under each personal law, Child custody matters in India are governed by the Guardians and Wards Act 1890 (GAWA), which is applicable to people of all religions in India. Under these Acts, generally, the custody of a small child is given to the mother. Custody of older boys may be given to the father, and of older girls to the mother. However, courts also consider specific personal laws while giving their judgements.
Hindus are governed by the Hindu Minority and Guardianship Act 1956 (HMGA), which follows similar considerations as GAWA. Although the HMGA provides that the father is the natural guardian of the child, the paramount consideration for custody is the welfare of the child. Courts in India have therefore tended to give custody of young children to the mother, on the grounds that ‘children of tender years’ cannot manage without maternal affection.
In the case of Christians, custody issues are handled by the Indian Divorce Act, 1869. Section 41 of the Act has some provisions which state that the Court may pass such orders as it deems proper, including placing the child in its protection.
However, an important point to be noted is that irrespective of the customs or personal laws, any parent who wants custody of a child and cannot reach a settlement has to seek custody separately from the Court. There is never any automatic transfer of a child’s custody to a particular parent.
The courts give their decision based on various aspects that deal with the welfare of the child. These factors include the character of the parent, economic conditions of the parents, any specified ‘will’ of a deceased parent, the moral environment at home, age and sex of the child and so on. Children’s preferences are generally considered after 9 years of age. Some archaic considerations still remain, which means that in case of remarriage of a woman, generally custody is not granted to her while it may be granted to a father who remarries, especially if the second wife cannot give birth.
There are two types of custody which may be granted. One is ‘sole custody’ where only one spouse gets the physical custody of a child. The other is ‘joint custody’ where both the spouses share the custody of the child.
Custody in India is not a hard and fast issue, and judges decide on a case-to-case basis. It is not always necessary that if you are of unsound economic condition or have some other problems, you will not be given custody. The courts keep in mind the mental satisfaction of the children and their best interests. After a divorce, the husband may be ordered to pay maintenance to the wife, which can also be used to bring up the child.
If you feel that you are capable of taking care of your child, then you must file an application. It is your right to get custody of your child. It is also advisable to meet a good lawyer and work on these aspects in advance. If one of the parents is given custody of the child, the other is granted visitation rights. That means that he/she can meet the child with permission from the custodial parent. It is also possible to request the Court to reconsider its decision after a period of time, especially if the children are not happy.
Other Useful Links
Some links that deal with child custody aspects are:
Legal Service India : http://www.legalserviceindia.com/article/l34-Custody-Laws.html
You are not alone : http://groups.yahoo.com/group/you_are_not_alone_we_are_there/ (Support group for divorced women of Indian origin)
(While we try to keep the information here as relevant and updated as possible, law is a complex subject and errors are possible. The information here is therefore not meant as a substitute for legal advice.)
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