Know your custodial rights for your child

There are several sound reasons to handle divorce as co-operatively and sensibly as possible. But one reason that subdues all others is the child custody battle. Custody for a child, when parents divorce implies with whom the child would physically reside and the custodial parent would have the primary responsibility over the emotional, medical and educational needs of the child. The non-custodial parent will have the right of access.

From the general point of view, the court is inclined to offer the right over a child to a mother, who is naturally preferred for legal custody. However, over the years there has been a shift from custody being a “ right of a parent” to being the “ right of a child” . The paramount welfare of the child is the non-negotiable principle, which decides who best will serve the emotional, social, medical, and educational needs of a child. In some countries, there is an explicit difference between physical custody and legal custody. Physical custody means having the child living with you and legal custody means the authority to determine the child's medical care, schooling, etc. In India, there is no such separate concept of physical and legal custody. However being a secular country, personal laws have different notions of physical child custody .

Custodial rights under Hindu law

In the Hindu community, the Hindu minority and Guardianship Act, 1956 and Guardians and ward Act, 1980 govern child custody, with HMGA 1956 having an overriding effect on GWA 1980. An important provision in HMGA 1956 is Section 13, which states that the “ welfare of the child is to be a paramount consideration” . With this clause, the favorable clause 19 of GWA 1980 towards father for child custody has been overridden. This means that child custody can be more easily granted to women in the interest of child welfare.

Section 6(a) of HMGA 1956 states that a minor child, under the age of 5, is committed to the custody of the mother. This legal trend might seem biased towards the mother, but it is not impossible for a father to claim custody of the child. The Act puts the onus on the father to prove cogent reasons, indicating that the livelihood and welfare of the child are jeopardized if the custody is retained by the mother. Section 26 of the Hindu Marriage Act, 1955 deals with custody of children with both parents following the Hindu religion. Under this Act, the court can pass interim orders and make provisions when and where they feel the need, with careful consideration for the maintenance and welfare of the child, after being proportionate with the child's wishes. The same principle is applied in section 38 of the Special Marriage Act, 1954. Section 41 of the Divorce Act, 1869, lays down power with the court to make orders as to custody of children in the suit of separation. You can approach the Courts for custody of your child with the help of a child custody lawyer .

Custodial rights under Muslim law

In Muslim law, a mother is considered as first priority w.r.t child custody and if the mother is disqualified under their personal laws, custody is given to the father. A mother's right to child custody is known as the right of Hizanat and can be enforced against the father or any other person. Among Hanafis, a mother's right over her son terminates on the latter's completing the age of 7 years. The Shias hold that mother is entitled to custody of her son till he is weaned. Among the Malikis, the mother's right of Hizanat continues till he reaches puberty. Mother's right over daughter remains till they attain puberty and get married. Father's right of Hizanat comes into the picture, when mother's right of Hizanat is completed or in the absence of a mother. The father then has the right to appoint a testamentary guardian with custody of the minor child.

Custodial rights under Christian law

Christian law per-se does not have any specific provision for custody and the issues are resolved by the Indian Divorce Act, 1869 which applies to all the religions of the country. Under this Act, the court passes interim orders for maintenance of the minor child, as it deems fit, altering the main decree of the suit to ensure proper care and maintenance of the child.

Advocate Chikirsha Mohanty

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