Both parents raised their child together, but following their divorce, they both desire custody of the child in their favour. The wellbeing of the child whose custody is in dispute is always considered by the court, not the welfare of the parents. The term “welfare” refers to both physical and mental well-being. Physical custody is awarded by the court to the parent who possesses acceptable parental skills, financial security, and an environment conducive to the child’s proper growth and development. It is the process of a custodial parent regulating, caring for, and maintaining a kid under the age of 18 years old within certain limitations such as financial security, understanding with the child, lifestyle, and so on. Other parents who do not acquire custody have permission to visit. The court must make a difficult decision when it comes to giving custody of a kid to one parent. Because the future of children is at risk, and children are seen as the nation’s future builders, the court renders the judgement after carefully considering all of the arguments and evidence.
The custodial parent has primary responsibility for the kid’s education, development, medical, emotional, and physical needs, while the non-custodial parent has the right to access and meet the child. In many circumstances, both parents have contact to the child, but the child’s actual custody is usually given to one of the parents. When ruling on this, the Family Courts must bear the best interests of the child in mind.
TYPES OF CHILD CUSTODY
The privilege of having your children live with you after a separation is physical care. In a joint physical care game plan, the privilege may be shared by both guardians, or it may be granted to only one parent in a solitary physical care game plan.
Joint Physical custody
Physical guardianship allows both parents to be active participants in their children’s lives. Children’s passage is preferred in joint guardianship over exclusive power in low-conflict divorces, according to research. In any case, the combined physical power may trap children in a passionate conflict zone in high-conflict divorces with disputing guardians.
On the separation of the parents, sole custody refers to who has primary or only responsibility for the child’s upbringing. In these situations, a single parent makes all of the main decisions for the child’s life.
Third party custody
Third-party custody is a unique arrangement in which a person who is not the kid’s biological parent is granted custody of the child at the Court’s discretion. Non-parents can be relatives, paternal/maternal uncles, grandparents, and so forth.
Split custody is a rare occurrence, and it is generally unwelcome. In his family, where there are many siblings, one parent is responsible for part of the children while the other parent is responsible for the rest of the siblings. This is not a desired arrangement because most of the time, a single parent is given custody of all siblings, and the siblings are not divided.
VARIOUS PROVISIONS OF CHILD CUSTODY UNDER DIFFERENT LAWS IN INDIA
Divorce or separation between parents is often difficult for the child concerned, and as a result, numerous laws protect the child’s rights in such relationships.
Under Hindu Personal Law
- The Hindu Marriage Act is the statute that governs child custody for Hindus. The Hindu Marriage Act of 1955 is the parent law that governs child custody for Hindus. This issue is further addressed under the Hindu Minority and Guardianship Act of 1956. In situations relating to custody of a child born out of wedlock among Hindus, the judiciary has displayed its activism primarily in three ways:
- Imposition: The right to custody can be exercised at any time. When deciding who will be responsible for the child’s care, the child’s wishes are typically considered. The children’s custodial privileges are occasionally interfered with by the courts. The Court is conducting a thorough investigation into the matter. The answer to the question of who will care for the child after separation or legal division is based on the consideration of what will be most beneficial for the child, and the court arrives to the judgement.
- Alteration: The right to custody can be exercised at any time. If fatherly care is more appreciated and encouraging, the father will receive it. If the child’s future is more secure under the mother’s authority, care will be given to the mother or any other relatives with whom the child’s interests appear to be more secure. In this case, the court is concerned about the child’s best interests and changes its decision in a timely manner.
- Revocation: This scenario occurs after the court has issued a child custody decree. In some cases, if the court makes a decision after considering the child guardianship request, the court may withdraw the care and give it to the opposing party. For example, if a mother was given custody of her child and failed to fulfil her commitments to the child in a legal and efficient manner, the court would deny the authority and give it to the child’s father.”
Custody Law under Muslim Law
The father is the natural guardian in Islamic law, but custody remains with the mother until the son is seven and the daughter reaches puberty. The notion of Hizanat states that, of all people, the mother is best fitted to have custody of her children until they reach a specific age, both during and after the marriage.
A mother’s right to custody cannot be taken away unless she is disqualified due to apostasy or wrongdoing, and her care is deemed to be detrimental to the child’s welfare.
Custody Law under Special Marriage Act, 1954
Section 38 of the Special Marriage Act of 1954 also addresses child custody, stating that the Court may issue interim orders and establish provisions for the custody, maintenance, and education of minor children from time to time.
Custody Law under Parsi Law
Section 49 of the Paris Marriage and Divorce Act of 1936 empowers the court to make such custody orders as it deems appropriate and equitable.
Custody Law under Christian Law
Section 41 of the Indian Divorce Act of 1869 gives the court the authority to issue such directions as it sees fit regarding the custody of the children involved in the divorce action.
ROLE OF JUDICIARY
In matters of custody, the judge plays a critical role. The Court has the authority to give enormously valuable rights that have a huge impact on the lives of children and their families. The child’s and his or her family’s destiny is shaped by the justice delivered by the Court.
It establishes the groundwork for his or her mental health and well-being. The Court performs a critical role as a protector of rights and an administrator of justice by appointing a guardian who is best suited to the child’s needs. As a result, the Court bears the important title of “Custodian of the Constitution.”
The welfare of the kid is the most important criterion in a custody proceeding for a minor. There is no legal right, privileged right, or other right that is more important than the child’s well-being. Any court of law will award custody to the party who can demonstrate to the court that the child’s best interests are best served by them. The mother will have custody of a kid of delicate age, but if the father can show that the child’s growth, development, and welfare are in jeopardy, then only the father will have custody of the child. With the exception of provision -6(a) of the Hindu Minority and Guardianship Act, 1956, this argument holds true.
According to the court, the father bears the burden of proving that giving custody to the mother would be detrimental to the child’s welfare. If the father is unable to demonstrate that the mother is unfit for the kid, custody will be given to the mother. The term “unsuitability” refers to a mother’s abuse, neglect, or failure to give adequate care for her kid. The custody of a child of tender age should be granted to the mother generally, but you cannot oversimplify the phrase “ordinarily” by granting the mother total custody of the child of delicate age. Although section 6(a) of the Hindu Minority and Guardian Act, 1956 was created only for the benefit of children, this does not preclude courts from making exceptions. According to this decision, a father can also obtain custody of his child if the circumstances are met.
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