This Article is written by Oishee Chaudhuri student of Heritage Law College.
It’s said, “If you have a child, the child always comes first.” The battle of custody often results to a loss on both sides. There are no winning teams. The burden of such warfare is mostly borne by the innocent child in between. The question of custody comes into play on divorce or death of either of the parents. In the legal parlance, child custody denotes the right of guardianship of the child under a person’s care. It is inclusive of legal, physical and social aspects.
TYPES OF CHILD CUSTODY IN INDIA
The various types of child custody are enumerated herein under:
- Legal Custody: Legal custody of a child means the obligations and rights towards the child’s upbringing which is backed by the law. The choices and decisions revolving around education, medical care, religion and other dimensions of the child’s personal life come under the purview of legal custody. Till the child attains the age of 18 years, both parents can continue to share legal custody of the child.
- Physical Custody: Physical custody denotes the parent with whom the child spends most of his/her time with, it can also means with whom he/she mostly resides. This kind of custody can be granted to either one or both of the parents at the discretion of the Court. It can also be interpreted as the rights shared by parents to have the child reside with them.
Physical custody can be further classified into:-
- Sole Custody: Sole custody denotes who gets the chief or exclusive responsibility in the upbringing of the child, on separation between the parents. In these cases, a singular parent makes all the major decisions revolving around the life of the child.
- Joint Physical Custody: Joint Physical Custody/ Shared Physical Custody means the rights of residence and upbringing of the child is shared between both the parents on mutual grounds. It is not necessary for an equivalent split with the time one gets to spend with the child but is mostly based on mutual understanding between the parents.
- Third Party Custody: Third party custody is a unique arrangement where an individual who is not the parent of the child is awarded custody of the child at the discretion of the Court. A non-parent may include relatives, or paternal/ maternal uncles, grandparents etc.
- Split Custody: Spilt custody is a rare situation and is not welcomed most of the times. In his arrangement where there many siblings in the household, the responsibilities of some of the child are taken care of by one parent and the responsibility of the rest of the siblings are borne by another parent. This is not a preferred arrangement because most of the times the custody of all siblings are awarded to a singular parent and the siblings are usually not separated.
- Bird’s Nest Custody: Bird’s Nest Custody is one of the most accepted and favored understanding where co-parenting is given preference over any other alternative. In these situations, where the parents are divorced or separated, the child stays put at one household, and the parents juggle between moving in and out. This is a healthy alternative for the child where he/ she get the affection of both the parents without having to go through the trauma of movement. The responsibilities and rights to the child are also shared by both the parents.
- Alternating custody: Alternating Custody is also known as divided custody and is gaining more prominence in recent times. During alternating custody both the parents are in contact with the child on a regular basis and schedule. The child spends a wholesome span of time with one parent and alternatively spends an equivalent time with the other parent. There is also a division of parental rights and responsibilities between the parents. This also provides the child with a healthy and well maintained bond with both the parents.
VARIOUS PROVISIONS OF CHILD CUSTODY UNDER DIFFERENT LAWS IN INDIA
A divorce or separation between parents is always challenging for the child involved and hence there are innumerable laws safeguarding the rights of the child from such relationships.
The Guardians and the Wards Act, 1890:
- The purpose of this Act was to secure and protect the rights and property of a minor child. This is a secular law protecting the rights of all minors within the territory of India irrespective of their religion.
- Section 7 grants powers to the Court to make order as to guardianship for a minor child to secure his rights to person and property.
- Section12 empowers the Court to make orders for temporary custody and protection of the person or property of the minor.
- Section 24 deals with duties of the guardians of the person and their duties towards the custody of the child.
- Section 25 involves the title of guardian to custody of ward.
Custody Law under Hindu Law:
- Hindu Minority and Guardianship Act, 1956: Section 6- 9 deals with provisions relating to natural guardianship to a minor child and their alternative rights and interests to custody.
- Hindu Marriage Act, 1955: Section 26 talks about custody of children and their rights and interests.
Custody Law under Muslim Law:
In Islamic law, the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty. The concept of Hizanat provides that, of all persons, the mother is the most suited to have the custody of her children up to a certain age, both during the marriage and after its dissolution. A mother cannot be deprived of this right unless she is disqualified because of apostasy or misconduct and her custody is found to be unfavorable to the welfare of the child.
Custody Law under Special Marriage Act, 1954:
Section 38 of the Special Marriage Act, 1954 also sheds light on the custody of children where the Court may from time to time pass any such interim orders and make provisions with respect to custody, maintenance and education of minor child.
Custody Law under Parsi Law:
Section 49 of the Paris Marriage and Divorce Act, 1936 grants Court to pass such orders that it seems proper and just in respect to custody.
Custody Law under Christian Law:
Section 41 of the Indian Divorce Act, 1869 grants powers to the Court to make orders as to the Custody of the children in suit for separation as it deems just and proper.
ROLE OF JUDICIARY:
The role of judiciary in custody issues are of immense importance. The Court exercises powers to grant rights of colossal value that have a vast impact on the life of children as well as families. The justice delivered by the Court shapes the future of the child and his/her family. It lays down the foundation of his/her mental health and well being. The Court plays the role of the protector of rights and administrator of justice thus selecting a guardian which serves the best interests of the child involved. Therefore, the Court holds the significant position of the “Custodian of the Constitution”.
It is a harsh reality and at the same time heart breaking to see that custody battles always put the child involved in a quandary situation. It turns the situation very sour and negative where the child is the ultimate sufferer. More so in these situations, therefore the utmost priority revolves around the welfare of the child and his/her best interests is always kept in mind. The primary focus stays on the child during these battles. The parental conflicts and disputes are usually decided in favor of the child, where there is a child in the epicenter of these battles.
- Tejaswi Pandit and Manovi Mittra, Custody of Children, SCC Online Blog (November 25 2019); https://www.scconline.com/blog/post/2019/11/25/custody-of-children/
- V Gupte, Hindu Law (4th ed) 2014 Volume 2 All India Reporter, Nagpur pg. 1036 1055
- V Gupte, Hindu Law (4th ed) 2014 Volume 2 All India Reporter, Nagpur pg. 608