Child Custody and Guardianship in India in comparison to western World

Introduction  

Child custody and guardianship are legal phrases that characterise the legal and practical relation between a parent and his or her child, including the parent’s authority to make decisions for the child and the parent’s responsibility to care for the child. The religious distinction in personal laws is a well-known and widely accepted reality. The various religious sects jealously defend, vehemently protect, and justify their regulations.  Prior to the arrival of the British, India’s principal inheritance laws either had their roots in the individual religion or were heavily influenced by personal rules owing to their religious loyalty.

Both mothers and fathers have a significant role to play in their children’s growth and development. When deciding on the child’s custody, the child’s and mother’s basic opinions are mostly overlooked. In the case of a divorce, just because a man earns more than a mother does not entitle him to custody of the child. In recent years, the situation has shifted. The parent with custody of the child is chosen based on the child’s best interests.

Hindu law governs child custody and guardianship.

The Hindu Minority and Guardianship Act of 1956 defined and modified Hindu guardianship law. It will be easier to discuss the subject matter under appropriate subheadings with the help of the act’s provisions.

  • Guardianship of minors’ persons

A minor is defined as a person who has not reached the age of eighteen years under the Hindu Minority and Guardianship Act, 1956[4]. A minor is defined as a person who is physically and cognitively undeveloped and hence need protection.

  • Property Guardianship of Minors

The natural guardian of a child’s person is also the natural guardian of the child’s possessions. A natural guardian, on the other hand, is not the guardian of the minor’s undivided share of the joint family property. A guardian of the minor’s undivided interest in the joint property cannot be appointed by either the natural guardian or the court.

  • De-Facto Guardian

A de-facto guardian is a person who, without legal power, takes an ongoing interest in the minor’s well-being or the management and administration of his property.Despite the fact that no authorization was given for incurring the liability, Hindu jurisprudence has always recognised the principle that if liability is incurred on behalf of another in a case where it is justified, the person on whose behalf the liability is incurred, or at the very least his property, is liable.

Guardianship and Child Custody in Muslim Law

While it comes to measuring the actual representation of women when requesting for custody and guardianship of children, Muslim law, in my opinion, is of highest relevance. In addition, the chapter has been separated into appropriate sub-headings.

Nature

The phrase guardianship refers to the care of a minor, particularly someone who has not reached puberty. In general, puberty is said to have occurred around the age of 15 years. In terms of guardianship, however, a Muslim is controlled by the Indian Majority Act of 1875, which states that the age of majority is 18 years for minors and 21 years for minors who have been appointed a guardian by the court. The court will appoint a guardian for the minor’s care under the Guardian and Wards Act of 1890.

In the Western world, child custody and guardianship.

Given that western laws are represented and obeyed to some part by choices and legislation made in the United States, I have focused my draught mostly on that country.

Due to the United States’ diverse demographic structure, enacting legislation that caters to the entire country without bias is extremely difficult. Despite all of the legal complexities that can arise during a child custody dispute, all 50 states in the United States have statutes that explicitly define a mother’s custody rights. In paternity cases, mothers are frequently considered as the primary caregiver and natural custodian of the kid.

In paternity cases, mothers are frequently considered as the primary caregiver and natural custodian of the kid. In certain situations, mothers have the right to submit a petition on behalf of the child against the father, requesting that he show if he is the biological and legal father of the kid. Once the father’s paternity is established, the mother has the right to seek child support on behalf of the kid. She can also ask the father to pay for the child’s medical and health insurance, split the medical expenditures incurred during the child’s birth, and pay a percentage of the mother’s attorney fees and litigation costs. The statement that a father does not have to pay for his child’s support is generally rejected by the courts.

Apart from that, in circumstances when the father fails to perform his parental responsibilities, moms have the right to ask the courts to terminate the father’s custody rights. If the father is proven to have abandoned the kid for an extended length of time, his custody rights will be reassigned to another individual chosen by the mother.If mothers believe their children are being subjected to physical abuse or domestic violence, they can ask the courts to invalidate the father’s visiting and custody rights. In cases when the father’s physical and mental stability is interfering with the child’s emotional and psychological development, moms can petition the court for custody transfer.

In certain jurisdictions, courts and legal practitioners are beginning to refer to custodial and visitation as “parenting schedules” rather than “custody and visitation.” The new language does away with the distinction between custodial and non-custodial parents, and it also tries to build on the so-called “best interests of the children” by creating timetables that fit the children’s developmental needs. Younger children, for example, require more frequent and shorter periods of time with their parents, whereas older children and teenagers can tolerate and even demand fewer frequent shifts but greater periods of time with each parent.

Conclusion

The main issue addressed in my draught was who is the natural guardian of the minor – what the statute provides, the hierarchy among the two natural guardians, i.e., the father and the mother,an exception provided by the statutory provision itself, and the principles made by judges regarding the guardianship of a minor, and that the right of the person claiming guardianship is relevant or the minor’s welfare. The main topic under discussion can be deduced from the draught title: women’s entitlement to custody and guardianship of children following divorce. As a sobering truth, women continue to have far less representation in society when it comes to child custody and guardianship following divorce. On paper, the comparison with Western laws appears to be on par with material laws, but in reality, it illustrates the paradox of gender concern in our country. My esteemed family law teacher deserves credit for making the essential issues more relevant and understandable to me. The courts have been working hard to improve women participation, which appears to be a probable beneficial effect of my draught.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

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