children's custody

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You can apply to court for children's custody under guardian and ward act. 

The right of custody of a Hindu child is dealt by the Hindu Minority and Guardianship Act, 1956 together with the Guardians and Wards Act, 1890. The two statutes have to be read harmoniously and the enforcement of one at the cost of the other is not permissible.

• The custody of a child below the age of 5 should be given to the mother as it is believed that the child of such a tender age needs affection and love which can only be provided by the mother.

• It has been a customary practice under Hindu law that the father is the natural guardian and has the ultimate right of custody. This practice has been codified in Section 6 of Hindu Minority and Guardianship Act, 1956 and the custody of children in India above the age of 5 and below the age of 18 years has been the right of the father. In Geeta Hariharan v Reserve Bank of India, the Supreme Court held that the mother can only claim custody on the pretext of the death of the father or in his absence. However, this rule is not applicable if the child is illegitimate. In such a case, the right to custody is only with the mother.

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Child Custody Laws in India

The separation of the parents of a child brings upon the issue of custody of their child. The present blog sheds light on different laws applicable to the custody of children of different religions. Further, the blog deals with the critical issue of discrimination that women face in case of custody rights.

Written by:
Swati Shalini

43,620

Published on
01-Apr-19

 HinduMuslimChristianParsi

Governing lawsGoverned by the Hindu Minority and Guardianship Act, read with the (secular) Guardians and Wards Act, 1890.Governed by personal law read with the Guardians and Wards Act, 1890.Governed by the Guardians and Wards Act, 1890 read with the Indian Divorce Act, 1869.Governed by the Guardians and Wards Act, 1890.

Distinction between rights of father and motherFather treated as the natural guardian.Father treated as the natural guardian.No such distinction.No such distinction.

Best interest of the childThe best interest of the child considered.The best interest of the child considered.The fundamental principle for granting of custody is the best interest of the child.The fundamental principle for granting of custody is the best interest of the child.

Child’s ConsentThe child has a say in the granting of custody.The child’s opinion is considered.The child’s opinion is given a considerable value if he is able to understand the situation.The child’s opinion is given a considerable value if he is able to understand the situation.

Table of Contents:

1. Custody under Hindu Law
2. Custody under Muslim Law (‘Hizanat’)
3. Custody under Christian law
4. Conclusion

Custody under Hindu Law

A Hindu person has been defined to include Jains, Buddhists and Sikhs also and thus, the law made for Hindus is also applicable to persons of these religions. The right of custody of a Hindu child is dealt by the Hindu Minority and Guardianship Act, 1956 together with the Guardians and Wards Act, 1890. The two statutes have to be read harmoniously and the enforcement of one at the cost of the other is not permissible.

Some general rules of child custody applicable on Hindus are – 

• The custody of a child below the age of 5 should be given to the mother as it is believed that the child of such a tender age needs affection and love which can only be provided by the mother.

• It has been a customary practice under Hindu law that the father is the natural guardian and has the ultimate right of custody. This practice has been codified in Section 6 of Hindu Minority and Guardianship Act, 1956 and the custody of children in India above the age of 5 and below the age of 18 years has been the right of the father. In Geeta Hariharan v Reserve Bank of India, the Supreme Court held that the mother can only claim custody on the pretext of the death of the father or in his absence. However, this rule is not applicable if the child is illegitimate. In such a case, the right to custody is only with the mother.

• The ultimate rule for granting of child custody is that such custody should be in the ‘best interest of the child’. All the rules laid down above can be disregarded on a strong implication of affecting the ‘best interests of the child’ adversely. 

• If the court believes that the parents are unwilling or unable to take care of the child properly or in his best interest, then the court can award the custody of such a child to the close relatives. In a case close relatives are also not able to dispose of the duties of the parents, then the custody can also be given to a capable third person at the discretion of the court.

• There are certain persons who cannot be given child custody – i. a person who has certain bad habits that will adversely affect the proper upbringing of the child; ii. a person who has ceased to be a Hindu or converted to any other religion; iii. a person who has renounced the world and does not believe in any materialistic pleasure eg. a person trying to achieve nirvana; and iv. a person who is not able to carry out the development of the child in his best interest (in such a case even mother of a child of a tender age can be denied custody).

Regards,

Anaita Vas