Child custody refers to the care, control, and maintenance of a child which may be awarded by a court to one of the parents in a divorce or separation proceeding. The “parental rights” are protected to varying degrees under the Indian law which includes physical possession of a child, which, in case of a custodial parent, includes day-to-day care and companionship of the child; right to control and manage minor child’s property, etc. Therefore, in a suit pertaining to the custody of the child, one needs expert opinions and a vigour to fight the case to bring victory which ultimately requires the best lawyers in Chandigarh.
Types of child custody
Divided Custody:Divided custody is where the child lives with each parent part of the year with reciprocal visitation privileges. In divided custody, the parent with whom the child is living has complete control over the child during that period.
Joint Custody: Joint custody involves an arrangement where both the parents share responsibility and authority with respect to the children; it may involve joint “legal” custody and joint “physical” custody.
Temporary Custody: Awarding of custody of a child to a parent temporarily, pending the outcome of a separation or divorce action.
The doctrine of “tender years”
Under this doctrine courts generally, award custody of children of tender years to mother unless she is found to be unfit.
What is considered to be the meaning of ‘unfit’?
The word ‘unfit’ literally means unsuitable; incompetent; not adapted or qualified for a particular use or service. When it comes to the relation of rational parents to their child, the word “unfit” usually, though not necessarily, implies something of moral delinquency, but, unsuitability for any reason, apart from moral defects, may render a parent unfit for custody.
Visitation and Visitation rights
In family law, visitation refers to the noncustodial parent’s right of access to his or her child; while a noncustodial parent is responsible for the care of the child during visits, visitation differs from custody because noncustodial parent and child do not live together as a family unit. Further, in a marriage dissolution or custody action, visitation rights refer to the permission granted by the court to a noncustodial parent to visit child or children.
Child Custody under the Hindu Personal Law
The Hindu Marriage Act, 1955
The law governing custody of a child, for Hindus, is the Hindu Marriage Act and in addition to this Hindu Minority and Guardianship Act, 1956 also takes care of this issue.
Section 26 of the Hindu Marriage Act talks about child custody and maintenance. As per Section 26- HMA 1955, the court may, from time to time, pass such orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible.
Hindu Minority and Guardianship Act
Custodial matters of a child are decided according to the natural guardian of the child. Natural guardian is defined under Section 6 of the HMG Act which outlines the following natural guardians of a minor child:
- For a legitimate boy or a girl, the father, and after father, the mother provided that the custody of a child less than 5 years of age will be with the mother.
- For an illegitimate boy or a girl, the mother, and after mother, the father.
Also, in divorce situations, the parent with custody is considered the natural guardian. This Act also gives the will of the child paramount consideration.
Custody under the Secular Law
The Guardians and Wards Act, 1890 was a law to supersede all other laws regarding the same. It became the only non-religious uniform law in India regarding the custody of a child. Section 17 of the act imposes a liability on the courts for appointing a guardian. The provision is well quoted below:
“Matters to be considered by the Court in appointing guardian.—
(1)In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
(2)In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
(3)If a minor is old enough to form an intelligent preference, the Court may consider that preference.
(5)The Court shall not appoint or declare any person to be a guardian against his will.”
The welfare of the child is of utmost importance
Section 13 of The Hindu Minority and Guardianship Act, 1956, states that welfare of minor to be paramount consideration while appointing or declaring any person as a guardian of a Hindu minor by a court and no person shall be entitled to the guardianship by virtue of any provision of this Act or of any law relating to guardianship in marriage among Hindus, if the court is of opinion that his or her guardianship will not be for the welfare of the minor.
In Halsbury’s Laws of England, Fourth Edition, Vol. 24, para 511 at page 217, it has been stated that
“Where in any proceedings before any court the custody or upbringing of a minor is in question, then, in deciding that question, the court must regard the minor’s welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father’s claim in respect of that custody or upbringing is superior to that of the mother, or the mother’s claim is superior to that of the father.”
No statute can ignore, eschew or obliterate the vital factor of the welfare of the minor and the question of the welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. The word `welfare’ has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well-being and there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases.