Custodial rights or legal guardianship are the legal terms which describe the lawful and practical relationship between a parent and the child. Resident and contact issues typically arise in proceedings involving divorce, annulment and other legal proceedings where children might be involved. Custody battles are not in the child’s best interest and are often used by angry partner in order to control his former partner. Custody courts tell abuse victims not to report their abuse, and force contact with deadbeat parents, abusive parents and uninvolved parents under the guise of children's interest. Generally, the courts thinks fit to give the custodial rights to the mother but the scenario regarding custody issues have changed over the years. Different countries have different norms and rules according to which they decide that to whom the custody should be given. In India, custody rights for a child are different for people of different religion and their particular acts governing the religion lay down the right of deciding the future of a child after the parents are separated.
In the Hindu community, Hindu Minority and Guardianship Act, 1956 along with Guardians and Ward Act, 1980 together govern the custodial rights of a child if the custodial battle is for a Hindu child. It is important to know that HMGA, 1956 has an overriding effect on the Guardians and Ward Act, 1980. Section 13 of HMGA,1956 says that the welfare of a child has to be of paramount consideration. This section has an overriding effect on the clause 19 of GWA Act, 1980 which favours the father for the custodial rights. It means that the custody of a child can be easily granted to the woman in comparison to her husband.
Section 6(a) of HMGA, 1956 says that any child under the age of 5 must live with his mother. This clause is slightly biased towards the mother but it is not impossible for the father to get the custody if he has significantly proven the just reasons and shown that the child’s welfare is better suited with him rather than the mother. Section 26 of Hindu Marriage Act, 1956 deals with both the parents if they are Hindus. According to this section, child’s wishes and needs are considered and his welfare is given the paramount importance. The child might be asked as to whom does he want to live with and thereafter the courts take a decision about the future of the child.
The mother is considered to be the foremost authority in whom the custodial rights of the child will vest. However, if the mother is described as incompetent according to their personal laws, the father may get the custody. Mother’s right of custody may be known as Right of Hizanat and is practically enforced against any person. Different sects of Muslims have different rules of the custody of the child. In Hanafis, the mother’s right of custody terminates when the child reaches the age of 7 years. Among the Malliks, mother’s right of custody continues till the time the son has reached puberty and in the case of a daughter, custodial rights extend till her marriage.
Father’s right of Hizanat begins on the termination of the rights of the mother. Then the father can apply for a testamentary guardian or for the full custody of the child.
Christians do not have any specific law which govern the custody of a child. Instead, it is governed by the Indian Divorce Act, 1869 and it applies to them as it applies to every citizen throughout the country. Under this act, the court passes interim orders for the maintenance of the child and thereafter makes rules for the child as the court deems fit.
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