When a couple decides to end their marriage, the primary issue that is to be addressed is the maintenance and custody of their children. For children below the age of 18 years, after the separation, the child must be assigned a specific place of residence with either of the parents or a third party in some cases. Each of the parents has certain duties and rights which comes under a quandary during the time of a divorce. Many questions arise such as Can the father get full custody of the child? how does the court decide who gets custody? does the mother get full custody? These issues affect the parents adversely as each parent does his/her best to gain custody.
There can be 3 different kinds of custody that are awarded by the Indian courts in cases of custody to the parents.
- Physical custody- This means that the child will live with the parent to whom the custody is granted by the court, the other parent gets visitation rights as decided by the courts making the parent with the physical custody, the primary guardian
- Legal Custody – This is related to the parents having the right to make important decisions regarding the welfare of the child such as education, financial support, and medical care. These decisions are generally shared by both parents.
- Joint custody – this is a new concept which has been developing which gives both parents equal physical and legal custody. This gives the child the benefit of having both parents actively involved in the life disposing of the concept of a primary guardian.
- Third party custody – The court diverts the custody of the child to a third party and not to either of the parents.
Law
The governing legislation pertaining to this issue is The Guardians and Wards act, 1890.
This act deals with the provisions for the redressal for the custodial dispute of the parents. This is a general act irrespective of religion. However due to the secular nature of India, there exist many religious governing laws pertaining to this issue.
- According to The Hindu Minority and Guardianship Act, 1956, which are applicable only if both parents are Hindu. The full custody of any Hindu child under the age of 5 will be given to the mother as this is a tender age and the mother is the one who can provide the child with proper, moral emotional and physical support. The custody of children between the age of 5 and 18 is given to the father as he is considered to be the natural caregiver, and the custody of an illegitimate child remains with the mother; There is no specific formula by which custody is decided and the court scrutinizes every case to find a suitable guardian for the child
- According to Muslim law, only the mother has complete right to be the guardian under the Right of Hizanat, unless she is proven misfit and guilty of misconduct.
- According to Christian laws, there is no prescribed child custody law in Christian are, hence the issues are dealt with under the Indian Divorce Act 1869.
Every case of divorce is carefully analyzed by the court to find the most suitable guardian for the child, as times progress the courts have started to consider the custody disputes as a right of the child and not the parent. The parent who is able to provide the child with better financial support for the upbringing of the child is normally considered the ideal guardian. The best interest of the child is given the most importance while deciding these matters. The court takes the role of the parent patriae, ie. The ultimate guardian and with this, it has the authority to alter the child welfare payments as per the welfare of the child. Hence once the divorce is finalized the court becomes responsible for the court and decisions made thereafter are made for the welfare of the child.
Keywords: Child Custody, Divorce, Child Upbringing, Physical Custody, Joint Custody, Legal Custody, Third Party Custody, Indian Divorce Act, 1869.
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