Custody of a child after the separation of the parents is a burning issue. Issue of the custody of child arises after the completion of the divorce or the judicial separation and is one of the most important issues which the court decides. It refers to a right given to a parent by the court to look after the child, only if the child’s age is less than 18 years. Parent is supposed to look after the financial security, maintenance of the child in regard to proper lifestyle, healthcare, emotional, physical and medical development. The other parent has only one right, to meet the child.
Factors which contribute to the welfare of a child:
Proper upbringing of a child.
Assurance of safety of a child.
Guardian must be financially well stabled to raise a child alone.
Forms of child custody available in India:
Physical custody of child: Child will be under the guardianship of the parent and other parent shall be given permission to meet with child from time to time. This form of custody is the best method to ensure that the child gets a family as well as the best upbringing possible.
Awarding of joint custody: Custody rights are given to both the parents to raise the child and keep the child in turns. No parents feel deprived and the child gets the affection of both the parents equally. This type of custody allows the child to receive the attention of both the parents equally.
Third party custody: The custodial rights lies to neither of the biological parents because the court is of the opinion that both of the parents are incapable of raising a child and wouldn’t be beneficial for the child.
Sole custody: It relies only on one biological parent. The other parent is kept away from child and is not given any right due to previous history of abusive behaviour.
Custody Laws in India
Custodial rights under Hindu Law:
Section 26 of the Hindu Marriage Act, 1955: It addresses the education and maintenance of the child only if both the parents are the followers of the Hindu religion.
Section 38 of the Special Marriage Act, 1954: It deals with the custodial rights where parents are from different religions.
Hindu Minority and Guardianship Act, 1956: This do not take third party custodial rights into consideration.
Custody of child under Muslim Law: Custody remains with the mother until child reaches the age of seven after which father is considered to be the natural guardian.
Custody of child under the Christian Law: The court may deny custody in case it is not satisfied with the abilities of the parents.
Custody under Parsi Law: It aims at the betterment of the child and has multiple legal provisions to ensure the same.
The custody is guided by the middle grounds established by the judge. There have been many controversies regarding the custody but the controversies should not affect the future of the child. Welfare and the social security of the child should be the main motive of the custody of the child.
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