The ownership of children is a burning issue for every divorce in India, which makes knowing about child custody laws in India important. Each parent seeks every kind of legal provision to gain responsibility for their child even though being a single parent is tough.
The key factor taken into consideration while granting custodial rights is the concern of child welfare. Thus, aspects such as financial stability of parents, reported misconduct, character and capacity of parent are given importance.
Custodial laws in India can be classified as physical and legal. While the courts grant physical rights to one parent, increasing cases have seen shared legal responsibility and guardianship of any child(ren).
According to the judicial system established in India, the legal rights over minors implies that the parent is solely responsible for the welfare of the juvenile in question. It not only entails both parents in joint decision making in issues like education, health, religion etc of the child, but also helps him/her to be better adjusted in Indian society where the experience of having separated parents can be quite traumatic.
While dealing such issues, the court considers the preference of the minor in question, if he/she is old enough to form an intelligent preference.
Traditionally in India, mothers were given ownership , but the trend has been showing signs of change. There hasn’t been much said to explain this tendency of presiding judges. More and more women are opting for career driven lives, which may not enable them to bring up their children as a single parent.
In case the wife is pregnant during divorce proceedings, then this fetus is treated as a living minor and can then be included in the proceeding in the court much like an already born minor.
Hindu Law – The Hindu Minority and Guardianship Act 1956 contains provisions for custody of minors. These are in sync with The Guardianship Act and the Wards Act 1890 that lay down rules for appointment of guardians irrespective of religion. It states that the natural guardian of a minor is the father, though the custody of a minor below the age of 5 will ordinarily rest with the mother. Even though the law qualifies fathers as the legal natural guardians, the courts usually grant custody of younger children to the mother since society considers their bond with the child to be more essential and nurturing.
Muslim Law – Under Muslim law, the foremost right of custody belongs to the mother though this is a time bound right. On completion of the time specified by the personal law, the father can gain responsibility.
Christian Law – There is no personal Christian law that specifically discusses this issue. However, The Indian Divorce Act confers powers on the court to make decisions regarding such issues in India, during divorce proceedings.
Parsee Law - There is no special provision for the Parsee community in India. The provisions of The Indian Divorce Act as well as Guardianship along with the Wards Act apply to Parsees.
Dispute over the possession and responsibility of children can be traumatic for both parents and children as well. Spouses usually settle for out of court agreements that decide on physical custody as well as visitation rights of the other parent. Agreements like these reached by mutual cooperation reduce the bitterness for all parties. A divorce proceeding need not mean that the spouses are bad parents.
This is why, increasingly, parents as well as courts have started considering the joint effort of parents in the life of a kid, as a fairer and more sustainable means of granting custodial rights. Not only does this option aid in retaining focus on the welfare of the minor, but it also ensures that the divorce is an amicable one.
Physical custody remains with one spouse, to avoid complications. But the ownership of responsibility is “joint” in nature, and these children tend to get more time even with the non-custodial spouse. In such cases, it is also easy to chalk out arrangements between parties with regards to incurring expenses over the child.
In most cases, shared parenting is beneficial for all parties. Since children are not as expressive, parents must seek to communicate the benefits of such arrangements to children to ensure their emotional well being.
Indian society especially is not known to be comfortable with the idea of divorce and resulting issues like that of child custody and alimony. Even the education system is ridden with information about how marriage is the ultimate bond, which should never be severed. It is always a better option to have both the mother, as well as the father, around to provide adequate support and care for the different aspects of growing up.
Despite the Indian society trying to convince couples to avoid separation, it must be noted that such a decision is solely in the hands of those directly involved. It should be made after due consideration of all aspects that could be effected, while not succumbing to the pressure of one’s peers, neighbors, and other unrelated intrusive forces.
While trying to understand child custody laws in India, it is essential to understand the turmoil that your kids might face, and prepare them appropriately.
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