Child Custody Arrangements in India
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- 20 Apr 2024 --
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Child custody Arrangements in India
The designation of one or more people to oversee and care for a kid under the age of eighteen is known as child custody. the authority granted by the court to a parent to care for their child (if the youngster is under 18). After the divorce or judicial separation is finalized, the question of child custody becomes apparent. After the divorce or judicial separation is finalized, the question of child custody becomes apparent.
The parent who has custody rights is expected to provide for their child's emotional, physical, and medical development as well as their financial stability and upbringing in a healthy lifestyle. The only right of access and meeting the child is granted to the other parent.
There are various arrangements for child custody.
1. Physical Custody: A parent's legal right to have their child live with them is referred to as "physical" custody.
2. Third party custody: This means that neither of the biological parents has parental rights when the other is unable to raise the child. Instead, a third party—somehow related to the parents—is named as the child's guardian.
3. Joint Custody: In joint custody, both parents enjoy joint physical and/or legal custody of the kid.
4. Sole Custody: A child is said to have sole custody if they are in the physical and/or legal care of only one parent.
Indian laws pertaining to child custody arrangements:
Regardless of the kid's religion, the Guardians and Wards Act, 1890 is the country's general statute governing guardianship and custody matters.
Hindu Law on Custody:
- Hindu Laws only apply in cases where both parents practice Hinduism
- The Hindu Minority and Guardianship Act of 1956 stipulates that the exclusive right to custody of a minor child belongs to the biological Hindu parents.
- Only in cases when both parents practice Hinduism does Section 26 of the Hindu Marriage Act deal with the child's upbringing and education.
- This Act is only relevant in cases when both parents identify as Hindu.
Muslim Law Regarding Custody:
Unless she is shown to have committed wrongdoing, the mother is the only one with exclusive custody of her children under the Right of Hizanat. Only in the event that the mother is not present or is not alive does the father receive the Right of Hizanat.
Child custody under the provisions of the Special Marriage Act of 1954: Section 38 of the Act validates the child's custody in cases where the parents are not religiously related or have entered into a court marriage. The court may make changes to the care and support plan for the child at any time, and any pending decrees may be resolved within sixty days of the notice date.
Christian law's provisions for custody are nonexistent; nevertheless, the Indian Divorce Act, which is applicable to all national religions, provides a satisfactory solution to custody disputes. Child custody is covered by clauses in the Indian Divorce Act of 1869. The aforementioned Act's Section 41 grants the authority to grant custody orders for children involved in divorce lawsuits. The 1954 Special Marriage Act, which grants child custody in cases when parents practice different religions or were just legally married, is another option available to them.
A kid's wants, parental fitness, financial stability, and parent-child bond are among the factors that influence child custody.
In ABC v. XYZ, the Bombay High Court ruled in Writ Petition No. 4060 of 2024 that adultery is a basis for divorce but cannot be used as a justification for denying child custody. Judge Rajesh Patil highlighted that a woman need not be a good mother to be a good wife.
In conclusion, the wellbeing and care of the kid should be the top priority during the custody proceedings. In the eyes of the child's welfare, all laws and rights come second. The future of the child should not be compromised by the judge's opinions. If the circumstances of the parents or kid materially change in the future, the custody agreement may also be amended or changed.
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