Divorce and child custudy

Sinjari Bandyopadhyaya(Banerje (Lawyer 9830019661 Kolkata WB) 28 May 2020

It is necessary to specify the fact in brief to get specific answer in that regard.

KS Johal 28 May 2020

I totally agree with my learned friend Sinjari Banerjee.
There are so many 'child custody rules' you need to be more specific.

P. Venu (Advocate) 29 May 2020

You have not posted the material facts.

G.L.N. Prasad (Retired employee.) 29 May 2020

It all depends on the discretion of Family court judge, on the basis of facts on record, submissions, the overall competencies of parents, age and option of the child etc., Spouses can only make such prayers for custody stating the facts on record.

Dr J C Vashista (Advocate) 30 May 2020

Opinion and advise on the subject matter shall differ from case to case, therefore you are required to post relevant facts of the case for consideration and obligation.

LIYANA SHAJI 02 June 2020

Hello,

The father and mother both have an equal right to the custody of a child. Who gets the custody of the child, however is a question which the court decides upon.

There are different types of child Custody Arrangements in India. They are :

Physical Custody

Physical custody when awarded to a parent, implies that the minor will be under the guardianship of that parent with visitation and periodical interaction with the other parent.

Joint Custody

Joint custody of a child does not mean that the parents will both live together because of the child even though that what Indian courts believe is best for the welfare if a minor. It simply means that both the parents will take turns keeping the child in their custody.

Legal Custody

Legal custody of a child differs from physical custody in more ways than one but the fundamental difference between the two is that legal custody does not necessarily entail having the child with you or being with your child at all times. Legal custody of a child basically means that the parent granted the legal custody takes every decision for the child.

Various laws related to a child's custody are:

Custody under Hindu Law

Section 26 of Hindu Marriage Act 1955

This act deals with the maintenance, education and caring of child and validates the child’s custody if and only if both the parents follow Hindu religion. Under this act, the court can any point of time pass interim orders, judgments, amendments, etc… with respect to the child’s maintenance and can dispose of the pending decree within 60 days from the date of service of notice.

Section 38 of Special Marriage Act 1954

The act validates the child’s custody if both the parents belong to different religions or have undertaken a court marriage. Under this act, the court can any point of time pass interim orders, judgments, amendments, etc… with respect to the child’s maintenance and can dispose of the pending decree within 60 days from the date of service of notice.

Hindu Minority and Guardianship Act 1956

Under this act, only biological parents and not step parents are given the right to seek the custody of their minor child only if he/she is a Hindu.

Custody under Muslim Law

As per the Muslim Law, only the mother holds the ultimate right to seek her child/children’s custody under the Right of Hizanat until she is not convicted or found guilty of any misconduct.

Custody under Christian Law

The child’s custody for parents belonging to Christian religion need to follow the reforms and laws set under Section 41 of the Divorce Act 1869. In addition to this, Section 42 and 43 of the same act hold the right to decide upon the child’s custody once the judgment with respect to separation or divorce has been passed.

But consideration of the child's welfare is given utmost importance by the courts no matter what and this was held in the case of Prateek Gupta v. Shilpi Gupta and Ors.

You can refer the following link for further reference.

https://www.lawyersclubindia.com/articles/understanding-the-concept-of-child-custody-11259.asp

Hope this answers your query.

Regards

Liyana Shaji

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