To delve into Child Custody Laws and rights in India and to  determine Child Custody rights it is important to first understand  Child Custody Laws and rights in India. Divorce is very complex when there are children involved  in it, but the child is more impacted by a divorce decree than the husband and wife are. The court will step in when both parents are arguing over child custody to determine what is best for the child before awarding custody of children.

It is not a straight jacket formula that the sole custody of child should always be with the mother . Since the court has always prioritized the kid’s care and interests over the parents’ rights, both the mother and the father have the same right to request child custody.

Crucial points for consideration before granting child custody

There are various factors that the court considers before granting child custody which are vital and are also based on past judicial precedents.

• A secure and wholesome home environment that the parent can offer
• The degree of the relationship between each parent and their child A kid’s physical, emotional, and mental well-being; the parent’s willingness to retain custody of the child;
• any indication of verbal, physical, or mental domestic violence;
• Keeping the child safe and raising them morally · Following the departed parent’s desires, if any
• The court grants custody in cases involving multiple children in order to maintain their unity.

Child Custody rights granted as per statutory law

The Guardians and Wards Act 1890 governs child custody matters in India along with other personal laws.The act provides for regulations and redressal pertaining to custodial issue irrespective of the religion of the parents or the child and is read along with the personal laws governing custody of minor children. Petitions are usually filed under section 7 of the Guardians and wards act 1890

Child Custody under Hindu law

As per the  Hindu Minority and Guardianship Act, 1956,  children below the age of 5 years In such cases the custody of the minor will be with the mother  and in case of boy or unmarried girl  the custody of the child may be awarded to the father. In provisions such as  Section 26 of the Hindu Marriages Act, 1955  there are provisions for passing interim orders with respect to custody , education of children and also maintenance provides for the Court to pass interim orders and make provisions with respect to the custody, maintenance and education of minor children.

As far as  the Indian Divorce Act, 1869, which governs the Christians section Section 41  of the said Act provides for such similar rights as education , maintenance etc.

Is it necessary that the mother will under all circumstances have child custody?

Not at all ,  the final determination if welfare of children which includes the overall upbringing of the child . It is true that the financial capacity also matters in such cases

Final determination in granting child custody

Apart from all the factors enumerated above the most important factor which also binds the parties  who does the child wish to live with. The Court will aways take his in consideration

Child custody to father Child Custody Laws and rights in India

Father being the first natural guardian is eligible for child custody after a certain age keeping in view certain factors that would be more conducive for the overall welfare of the child . Therefore it is not necessary that the mother is granted child custody under all circumstances.

Kinds of Child Custody

There are mainly the following  kinds of custody

Physical Custody

In these cases whoever keeps the sole custody the other party will have visitation rights to visit the child

Legal Custody

This means and includes taking decisions of child in education related matters and overall upbringing

Sole Custody

When it is for the welfare of the child that the custody of the child will remain with one parent and the other is excluded from interfering in custody due to various factors which will be detrimental to the upbringing of the child

Third party custody

In these cases wherein the custody is given to someone other than biological parents

Conclusion for Child Custody Laws and rights in India

Kindlly refer to the famous case of  Gita Hariharan v. Reserve Bank of India  , in this case it was held that both father and mother can be termed as natural guardians and the determination of welfare of the child for granting child custody.  Also refer to Gaurav Nagpal vs Sumedha Nagpal on 19 November, 2008 for any reference to Parens Patriae jurisdiction arising child custody matters.

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