Marriage is considered to be a sacred relationship between the man and woman. But, when marriage gets estranged, the couple is no longer willing to live together and seek separation or divorce. For couples with kids, getting a divorce creates a very unpleasant environment, and claiming a child’s custody is a heart wrecking situation for the family.
This article will discuss the definition of child custody, who can claim custody of a child, different types of child custody. Also, we will talk about the factors which determine a child’s custody, rights of parents over the minor child after divorce, unlawful custody, how to obtain child custody in case of illegal custody, and child custody laws in India.
What is Child Custody?
When a couple gets separated, the question arises as to who will keep the child? The legal right to keep a minor child and take care of the child after divorce or separation is called child custody.
Who can Claim the Custody of a Child?
Generally, the child’s mother or father is given custody of the child. In exceptional cases such as the parents’ death or the incapacity of the parents to look after the child, the custody of a minor child is given to the grandparents or a third party relative as a legal guardian of the child.
Types of Child Custody in India
In India, there are four types of child custody; namely:
In this type of custody, the child physically lives with one of the parents, and that parent takes care of the child’s upbringing. The other parent only gets to meet, visit and interact with the child regularly as provided by the court. In short, one parent gets physical custody, and another parent only gets access right over the child.
In Joint Custody, both the parents living separately get equal opportunity to live with the child. In other words, custody rights are equally given to both parents. This type of custody is highly preferred and acceptable as none of the parents feels deprived, and the child gets the love and affection of both the parents.
Under this type of custody, only one parent is given the child’s custody, and another parent is deprived of the child’s custody. The other parent is kept away from the child due to their abusive, offensive, or unstable behaviour or inability to benefit the child.
In this type of custody, both parents are deprived of the child’s custody, and third-party relatives or grandparents are given legal guardianship to take care of the minor child. It can be due to the parent’s death or due to the parent’s incapacity to take care of the child, or the parent is not beneficial for the upbringing of the child.
Factors that determine the Custody of the Child
The crucial factor that the court considers while vesting the child’s custody is the ‘benefit’, or ‘welfare of the child. In Nil Ratan Kundu Vs. Abhijit Kundu (2008) 9 SCC 413, the court had clearly stated the child’s age and the parent who can keep the child’s custody.
They are the following:
- Under the provision of the secular laws and Hindu law, the child’s custody below five years is generally given to the mother. In the case of a boy child who is above 18 years, the custody is given to the father, whereas, in the case of a girl above 18 years, the custody is given to the mother. If the child is above nine years, he/she can choose to live with either parent.
- Whether the parent is abusive, what is the parent’s ethical background and mental condition, then the court can accordingly deny or grant custody for the child’s well-being.
- The court cannot deny the custody of a child to the mother, only on the ground that she does not have sufficient income. However, the court can award child custody to the mother and direct the father to provide adequate means or maintenance for the child’s upbringing.
- If the father has remarried to another woman after divorce and has got children out of the second marriage to the stepmother, the court would not grant custody to the stepmother.
- The court can take the opinion of the minor child if the child is intelligent enough to decide as to whom he/she wants to reside.
- Sentiments and attachment of the parent towards the child are essential for the welfare of the child.
- The court ensures that the child is not used to gain any profit or share in any property or escape maintenance.
Right of Parents over Minor Child after Divorce
Typically, both parents have an equal right to get custody of the child even after separation or divorce. Since the child’s welfare is of paramount importance, the court ensures that the child gets the affection and attention of both parents. Thus, when one of the parents is given custody of the child, the other parent gets visiting rights as put forward by the court.
When either parent forcefully and intentionally keeps the child away from the other parent, either during the pendency or before filing a proceeding or after the court has passed a decree for custody of the child. Such an act is called unlawful custody.
How to obtain a Child’s Custody in the case of Unlawful Custody?
- To obtain a child’s custody, one has to file a petition for child custody under Section 9 of the Guardian and Wards Act, 1890, in a family court having jurisdiction. Such a petition can be filed by the parent or a third party who wishes to seek custody of the child. The petition has to be filed at the place where the minor resides.
- Where the child is a foreign citizen and does not reside in India (within the jurisdiction of the family court) then, the family court does not have any jurisdiction in such matters.
When either parent unlawfully keeps the child in their custody, the other party can claim the following remedies:
- The parent can file a Writ petition of Habeas Corpus under Article 226 of the Constitution of India in case of unlawful custody. Such a petition can be filed where the child has been shifted. It must be proved that the captivity of the child is illegal and without any authority given by the court.
- Application for interim relief under Section 12 of the Guardians and Wards Act, 1890 can be made for obtaining temporary custody and protection of the person or property of the minor child.
Case Law w.r.t to Unlawful Custody: Arathi Bandi Vs. Bandi Jagadrakshak Rao & Others, AIR 2014 SC 918
In this case, the NRI parents living in America filed a suit for child’s custody in American. The American court had given the child custody to the mother, and the father was given only visiting rights. The mother had brought the child to India, thereby depriving the father of his visiting rights. The father had filed a writ petition under Article 226 of the Indian Constitution in India. Henceforth, the court had directed the mother to get back the child to America and had further held that no wrongdoer should take advantage of the wrongful Act in any country. The court can issue an order under Section 25(1) of the Guardian and Ward Act, directing to return the child to the guardian’s custody if the child has been removed from the guardian’s custody or has left the custody of the guardian.
Child Custody Laws in India under different religions
The Guardian and Wards Act, 1890 is a secular law that has provisions based on a child’s custody after divorce and is applicable for all religions. However, as India is a multi-religious country, there are diverse provisions for separation and child’s custody in different personal laws.
Let us now look into the legal provisions for child custody under different personal laws:
Custody under Hindu Law:
Section 26, Hindu Marriage Act, 1955 deals with custody, maintenance, and education of the child who belongs to the Hindu religion.
Section 38, Special Marriage Act, 1954 deals with custodial rights of parents belonging to different religions.
Hindu Marriage and Guardianship Act, 1956 deals with the custodial rights of biological Hindu parents. It does not recognize any third-party custodial rights.
Custody under Muslim Law:
The mother can claim the custody of a minor child under the Right of Hizanat, and the father can get the child’s custody after the child attains the age of 7 years (as a 7year old child is considered a minor under Muslim law).
Custody under Christian Law:
Section 41 of the Divorce Act, 1869 deals with the custodial rights of Christian parents. The court has the right to pass orders regarding the Christian child’s custody, maintenance, and education.
Custody under Parsi Law:
There is no specific law on custody in Parsi Law. The Guardian and Wards Act, 1890, governs the custodial rights of Parsis as it intends for the welfare and betterment of the child.
Child custody is governed under the Guardians and Wards Act, 1890 in association with the personal laws of the couples depending on the religions they follow. Before giving the child’s custody, the court has many factors to look into, such as wishes and attachment of the child, welfare of the child, the parent’s behaviour, the financial capability of the parent, etc. If the child is in unlawful custody, the other parent can claim it under Article 226 of the Constitution or Section 25(1) of the Guardian and Wards Act, 1890.