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Custody of Child

When deciding about the custody of child after divorce or about the interim custody during the pendency of the divorce proceedings, the court considers “welfare of the child” is of paramount consideration. It is not the welfare of the father, nor the welfare of the mother, that is the paramount consideration for the court. It is the welfare of the minor and of the minor alone which is the paramount consideration. The law governing custody of children is closely linked with that of guardianship. “Guardianship”, refers to a bundle of rights and powers that an adult has in relation to the person and property of a minor, while “Custody” is a narrower concept relating to the upbringing and day-to-day care and control of the minor.

Legislative Enactments

  • Guardians and Wards Act, 1890: This Act is a secular law regulating questions of guardianship and custody for all children within the territory of India, irrespective of their religion. The welfare of the child is the top priority.
  • Hindu Minority and Guardianship Act, 1956: Provides various provisions concerning the matters of guardianship and custody of minor Hindu children.
  • Hindu Marriage Act (Section 26): Authorises courts to pass interim orders regarding custody, maintenance, and education of minor children.
  • Islamic Law: The father is the natural guardian, but custody vests with the mother until the daughter reaches puberty and the son reaches the age of seven.
  • Special Marriage Act, 1954: Empowers the district court to pass interim orders for custody during proceedings.
Legislation

Types of Custody

Legal Custody

One or both parents retain the right to make decisions about the child's upbringing (education, career, healthcare, etc.), even if the child resides with only one of them.

Physical Custody

In physical custody, the child lives with one parent, and the other parent may be granted visitation rights by the court.

Joint Custody

Both parents share custody, with the child alternating between them.

Sole Custody

Custody is granted to one parent if the other is deemed unfit due to reasons such as abuse or addiction.

Jurisdiction

Section 9 of the Guardians and Wards Act, 1890 states that jurisdiction for custody claims is based on the “ordinary residence” of the minor. The solitary test for determining the jurisdiction of the court is the “ordinary residence” of the minor.

Key Factors Considered by Courts

  • The welfare of the child is paramount (Sheoli Hati v. Somnath Das, (2019) 7 SCC 490).
  • Examination of the child to ascertain his wishes.
  • Further important considerations are age and maturity of the child; their preference might be considered by the court.
  • Financial stability, mental health, and overall ability of the parents to provide a safe environment for the child are assessed by the court.

Conclusion

Divorce and custody battles can become a quagmire and it is heart-wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents. The Courts prioritize the child’s welfare above all. Custody may be granted to either parent or can be shared amongst both parents based on the best possible outcome for the child's upbringing, safety, and happiness.

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