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Can my husband file for custody of children
19-Feb-2023 (In Child Custody Law)
I have 2 sons aged 3.5 & 2. My husband & I married 6 years ago. It's a love marriage. My husband after our second child changed A lot & got into an influence of his friend who is rude & agrtessive.. Now my husband has gone back to delhi, hardly calls just puts money in account. He is brain washed by his friend & family to force me to live with family or he wants seperation. I don't want to give my sons to them. My in laws have never taken care of my children. Now that I am raising them they. R plotting this.. Please suggest
Physical custody means that one parent is held responsible for the child’s basic/daily needs like housing, education and food. But in many cases, the non-custodial parent still has visitation rights.
Although there are some specifications under each personal law, Child custody matters in India are governed by the Guardians and Wards Act 1890 (GAWA), which is applicable to people of all religions in India. Under these Acts, generally, the custody of a small child is given to the mother. Custody of older boys may be given to the father, and of older girls to the mother. However, courts also consider specific personal laws while giving their judgements.
Hindus are governed by the Hindu Minority and Guardianship Act 1956 (HMGA), which follows similar considerations as GAWA. Although the HMGA provides that the father is the natural guardian of the child, the paramount consideration for custody is the welfare of the child. Courts in India have therefore tended to give custody of young children to the mother, on the grounds that ‘children of tender years’ cannot manage without maternal affection.
As per Muslim personal laws, minor children are given to mothers. But after the age of seven years, the mother’s right over the son ends. Girls are given to mothers until they attain puberty. One important aspect of this law is that the conduct of the mother is of great importance, and if that is found ‘objectionable’, she may not be given custody rights. The father has the right to custody after the mother’s term ends. In case of the absence of both parents, the grandparents are offered the custody of the child. Also, as per ‘Shia’ law, if a person ceases to be a Muslim, the child’s custody cannot be granted to him/her.
In the case of Christians, custody issues are handled by the Indian Divorce Act, 1869. Section 41 of the Act has some provisions which state that the Court may pass such orders as it deems proper, including placing the child in its protection.
However, an important point to be noted is that irrespective of the customs or personal laws, any parent who wants custody of a child and cannot reach a settlement has to seek custody separately from the Court. There is never any automatic transfer of a child’s custody to a particular parent.
How courts decide child custody
The courts give their decision based on various aspects that deal with the welfare of the child. These factors include the character of the parent, economic conditions of the parents, any specified ‘will’ of a deceased parent, the moral environment at home, age and sex of the child and so on. Children’s preferences are generally considered after 9 years of age. Some archaic considerations still remain, which means that in case of remarriage of a woman, generally custody is not granted to her while it may be granted to a father who remarries, especially if the second wife cannot give birth.
There are two types of custody which may be granted. One is ‘sole custody’ where only one spouse gets the physical custody of a child. The other is ‘joint custody’ where both the spouses share the custody of the child.
Other key facts about child custody law in India
Custody in India is not a hard and fast issue, and judges decide on a case-to-case basis. It is not always necessary that if you are of unsound economic condition or have some other problems, you will not be given custody. The courts keep in mind the mental satisfaction of the children and their best interests. After a divorce, the husband may be ordered to pay maintenance to the wife, which can also be used to bring up the child.
If you feel that you are capable of taking care of your child, then you must file an application. It is your right to get custody of your child. It is also advisable to meet a good lawyer and work on these aspects in advance. If one of the parents is given custody of the child, the other is granted visitation rights. That means that he/she can meet the child with permission from the custodial parent. It is also possible to request the Court to reconsider its decision after a period of time, especially if the children are not happy.
Although there are some specifications under each personal law, Child custody matters in India are governed by the Guardians and Wards Act 1890 (GAWA), which is applicable to people of all religions in India. Under these Acts, generally, the custody of a small child is given to the mother. Custody of older boys may be given to the father, and of older girls to the mother. However, courts also consider specific personal laws while giving their judgements.
Hindus are governed by the Hindu Minority and Guardianship Act 1956 (HMGA), which follows similar considerations as GAWA. Although the HMGA provides that the father is the natural guardian of the child, the paramount consideration for custody is the welfare of the child. Courts in India have therefore tended to give custody of young children to the mother, on the grounds that ‘children of tender years’ cannot manage without maternal affection.
As per Muslim personal laws, minor children are given to mothers. But after the age of seven years, the mother’s right over the son ends. Girls are given to mothers until they attain puberty. One important aspect of this law is that the conduct of the mother is of great importance, and if that is found ‘objectionable’, she may not be given custody rights. The father has the right to custody after the mother’s term ends. In case of the absence of both parents, the grandparents are offered the custody of the child. Also, as per ‘Shia’ law, if a person ceases to be a Muslim, the child’s custody cannot be granted to him/her.
In the case of Christians, custody issues are handled by the Indian Divorce Act, 1869. Section 41 of the Act has some provisions which state that the Court may pass such orders as it deems proper, including placing the child in its protection.
However, an important point to be noted is that irrespective of the customs or personal laws, any parent who wants custody of a child and cannot reach a settlement has to seek custody separately from the Court. There is never any automatic transfer of a child’s custody to a particular parent.
How courts decide child custody
The courts give their decision based on various aspects that deal with the welfare of the child. These factors include the character of the parent, economic conditions of the parents, any specified ‘will’ of a deceased parent, the moral environment at home, age and sex of the child and so on. Children’s preferences are generally considered after 9 years of age. Some archaic considerations still remain, which means that in case of remarriage of a woman, generally custody is not granted to her while it may be granted to a father who remarries, especially if the second wife cannot give birth.
There are two types of custody which may be granted. One is ‘sole custody’ where only one spouse gets the physical custody of a child. The other is ‘joint custody’ where both the spouses share the custody of the child.
Other key facts about child custody law in India
Custody in India is not a hard and fast issue, and judges decide on a case-to-case basis. It is not always necessary that if you are of unsound economic condition or have some other problems, you will not be given custody. The courts keep in mind the mental satisfaction of the children and their best interests. After a divorce, the husband may be ordered to pay maintenance to the wife, which can also be used to bring up the child.
If you feel that you are capable of taking care of your child, then you must file an application. It is your right to get custody of your child. It is also advisable to meet a good lawyer and work on these aspects in advance. If one of the parents is given custody of the child, the other is granted visitation rights. That means that he/she can meet the child with permission from the custodial parent. It is also possible to request the Court to reconsider its decision after a period of time, especially if the children are not happy.
Helpful?
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49+
Adv. Siddhant Sharma
Delhi | 500+ Answers
Chat
Madam as far as children below age of 5 are concerned the custody will remain with the mother, and even after 5 years your husband wants the custody then he has to file a case for custody and prove that he is in better position and can take care better then you, and it is not easy and time consuming for him to get custody, at present he will not be granted custody and even after 5 years he has to file a case and then the court will decide to whom the custody should be granted.
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Adv. Bharat Narasgouda
Belgaum | 500+ Answers
Chat
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