Divorce,Marriage law
Child custody laws in India
05 Jul 2016  |  Views: 203  | 
Deepika Gill
Advocate

Child custody laws in India-Introduction

Child-custody determination means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. Family law courts in our country usually have an unbiased judgment in matters relating to child custody, based on the best interests of the child, and not always on the best arguments or accusations of the parents.

After getting done with a hard divorce, working out an agreement that includes child Custody and visitation can be tedious, especially when there is lack of empathy between you and your spouse. Irrespective of whether you’ve had a recent separation or a prolonged one, there is definitely something you can do about this.

Generally, the court is inclined to offer physical custody of the child to whichever parent is more secure financially, has greater parenting skills, and has lesser issues. In most cases, the non-custodial parent still has many rights. However, many religions in India have their own personal set of laws that define a different norm of custody.

LAWS ASSOCIATED TO CHILD CUSTODY

Custody under Hindu Law

Section 26 of Hindu Marriage Act, 1955

This act deals with the custody of children with both parents following the Hindu religion. In any proceeding under this act, the court can pass orders and make provisions when and where they feel the need, with careful consideration and respect to the custody, maintenance and education of minor children, and after being commensurate with the child’s wishes.

In any proceeding under this Act, the court may, from time-to-time, pass such interim 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 and may, after the decree, upon application by petition for the purposes make from time-to-time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending and the court may also from time-to-time revoke, suspend or vary any such orders and provisions previously made: Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

Section 38 of the Special Marriage Act, 1954

In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.
Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.

Section 41 of the Divorce Act, 1869

Power to make orders as to custody of children in suit for separation: In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.

Custody under Muslim Law

According to the Muslim law, the mother has the ultimate right to have custody of her children and she can, in no way, be dismissed of this right as long as she is not accused and found guilty of misconduct. This right is known as right of hizanat and it can be enforced against the father or any other person. The mother’s right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right”

Custody under Christian Law

Christian law per se does not have any provision for custody but the issues are well solved by the Indian Divorce Act which is applicable to all of the religions of the country. The Indian Divorce Act, 1869 contains provisions relating to custody of children. Section 41 of the said Act provides with the powers to make orders as to custody of children in suit for separation. -In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the said Court.

 

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