Author: Shruti, from Shri Ramswaroop Memorial University
To the Point
Child custody is one of the important topic of the society which is need to be known. The issue of the child custody involves that who will be the legal guardian of the child, who will be taking care of the child and who will be the primary caretaker of the child and who can take the primary decision like education, healthcare, lifestyle, upbringing, development of child whether it can be mental or physical and to meet the needs of the child and under whom the child is considered to be under the legal custody. Child custody is given to either of the parent claiming for the custody and both the parent puts forward their points and how the other would take better care of the child than the other and why the custody should be given to the one. Parents asks for the custody of the child who less than 18 years old and the Family court deals with the issue of the child’s custody. Although if one parent got the custody it does not always means that other parent would not be allowed to meet the child. The court can grant the permission to meet the child but primary responsibility would be on the parent who had got the custody. Parent who does not get the custody has visitation rights. However, joint custody of child can also be given by the court in which both the parent would get equal opportunity to take the decision on the behalf of the child. Joint custody can be given when court finds both the parent are wise and can take care of child but they don’t want to live together. When one of the parent is abusive child custody is not given to that parent. In joint legal custody both the parent has got the legal custody to take major life decision of the child but the child will live with one of the parent to whom the physical custody is given and the other parent has only visitation right and has to give maintenance if the parent is capable. Sometimes sole legal custody is given. Joint physical custody if given by the court then the child will live with both the parents according to the time duration set by the court, suppose child live with mother for 3 months then the other 3 month child will live with father and rest of the month divide wisely. If sole physical custody is given by court then the child would live with the parent who has got the physical custody and the other parent would have visitation right. Physical custody can also be given in terms that for sometime live with one parent and rest of the time with other parent. In all the types of the child custody the decision is taken by the court in such a way that it would be better for the child life and the child can get to live peacefully and does not have any mental tension. The court takes the decision wisely which is best for the child’s future seeing all the circumstances of the case. In most of the cases joint custody is preferred whether it is joint physical custody or the joint legal custody so that child has influence of both mother and father in the child’s life. But any of the parent found abusive and unfit then custody would be given to the third party and it can be anyone including grandparent and are considered as the legal guardian. In the matter of the child custody, child’s age is an important factor. If the child’s age is less than 5 years then it is thought that it would be good if child live with her mother but if mother is unfit than the custody would be given to the father. When the child custody case come and child’s age is above 9 years than the child’s wish is also considered. When the child is above 5 years of age, custody of child is given according to the situation and for better of the child.
Use of Legal Jargon
In the case of the child custody the main point is the custody whether it would be physical custody means with whom home child will live and legal custody means who will take the major decisions of the child’s life such as education and healthcare. Visitation rights to parents have key role in the child’s custody. The family court deals with the matters regarding the child’s custody.
Proof
In India child custody is concerned matter and can be seen mentioned in the laws. For example under the section 6(a) of the Hindu Minority and Guardianship Act, 1956, child custody is mentioned and can go to the mothers ordinarily if the child’ age is below 5 years. But if mother is unfit then mother is not given the custody. Also Guardians and Wards Act, 1890 deals with the minor who is below 18 years of age and unable to take decision on his behalf so if parents get divorced then both have the rights to suit for the custody of the minor child for the minor upbringing. Also section 10 of the Guardians and Wards Act, 1890, petition if filed by parents for the child’s custody then they should provide all the details about the child who is minor to prove their authentication such as IDs, residence place proof, birth certificate and other relevant information. In the earlier times the court in most of the cases favors mother and given custody to the mother but as the society changes and the time flew equality prevails and both the party is having opportunity now to get the custody, both mother and father have equal rights and whatever is best for their child then according to the child’s interest custody is given now. When under 5 years of age custody is basically favors to the mothers but child’s wish is also considered.
Abstract
This article deals with details of the child custody. Discusses what is child custody and how it is prevalent in the society. What are the acts that govern the child’s custody. Technical terms and factors are the important discussion of the article. Legal custody and the physical custody are the types of the custody mentioned in the article. It also mentions the present situation that how the child custody is dealt by the court and mostly joint custody is preferred for the better interest of the child. Child interest is also considered above 9 years of the age.
Conclusion
Child custody is considered to be important topic of the society. When both the parents get separated then it does not only effect the parents life but their child life also get effected and the most difficult situation is that with whom child will live because child’s need to get the love of both mother and father and it is difficult to decide with whom the child will live, but for the better future of the child and who will be the best for the child and can take care of the child properly would be given custody. In recent years joint physical custody or joint legal custody is mostly preferred for the best interest of the child.
Case Laws
- Shazia Aman Khan and Anr. v. The State of Orissa and Others (2024)
In this case it was held that child’s custody is given to the parents not only according to the personal laws but according to the welfare of the child. When the child shows any wishes to live with either of the parents then the Supreme court order that child wishes has to be taken into consideration by the lower courts.
- Geeta Vohra @ Geeta Chopra v. Nitin Chopra (2020)
In this case court held that if the parents does not obey the courts order in regard with the child’s custody they would be punished according to the law.
- Smt. Mamoni Pal (Biswas) v. Sri Samir Pal (2022)
In this case the court gave the importance to the mother that if mother is not more capable then father then father would not get custody only on this basis because if father is married second time and had child with second wife then the second wife would give priority to her own child not to the first wife child and hence the custody would be given to the mother even though she is not financially more capable than the husband.
FAQs
- Whether father will be given the custody of the girl child?
It is not mandatory that mother would get the girl child custody always and custody would be given according to the child best interest. But the Muslim Personal Law says that during puberty girl child should be with mother so for 14-15 years of age she should be with mother and for 7 years male should be with mother but the court can take the decision according to the best interest.
- Who will get the custody of the child if both mother and father died?
If both the parents died then court will take decision which is best for the child and closely examine the relatives and family and then give the custody accordingly.