At times there comes a point in a marital relationship when spouses decide to separate ways file a divorce case to end the marriage. When the wedlock ends this creates a challenge with respect to the children’s future that with which parent they should stay and in case any of the child is still young and needs caring then the question becomes more complicated where the court needs to interfere at the behest of the spouses.

Child Custody is one of the important aspects of family law and the lawmakers have taken utmost care to bring in the element of social development and justice while deciding the case of child custody.

While deciding the cases for guardianship and custody the welfare of the child is of paramount importance than anything else. The emotional and other factor of the applicant are to be considered as secondary but primary factor to be considered is the welfare of the child.

Custody refers to the right of a ‘parent’ of taking decisions for their child. Guardianship refers to a situation wherein a person is given legal authority over certain spheres of another person’s life. Guardianship and child custody are not that extremely different from each other. Guardianship can be connected to a parent-child case as well as to something else.

Even the adults and senescent are fit for having their own particular legal guardian as long as they are accurately unequipped for representing themselves as per the lawful expectations. While in custody or lawful child custody, it's for a parent-child or adult-minor sort of case. Since minors can't settle on right choices all alone, custody over them is generally given to the mother or father if there should be an occurrence of parent separation.

In essence, guardianship of a child, who seem to be incapable in the process of carrying out his life himself as per the expectations of the law, is not an exclusive right of the parents and can be granted to any person, whereas, Custody refers to a more parent-child/adult-minor basis. Also, Guardianship has a limited scope w.r.t decision making provisions, whereas, Custody has superior authority

The prime originator for any child custody case is the divorce and separation cases being filed at different courts in our countries. Whenever a couple file a matrimonial suit to dissolve a case in family court or district court and if they have a child born out that of that wedlock the next question that arises is who should have the custody of the child/children?

Many a times couple do decide to stay away from each other even without a divorce and even in those case they need to decide that who should have the custody of the children.

Death of the parents is also a reason for which a case can be filed at a court wherein the court has to decide who should be the next custodian of the child.

Till the child turns 5 years of age mother is the natural guardian and she automatically gets the custody without any question unless there is something grossly wrong like mental incapacity. Once the child turns 5 after that the father can apply for custody and the application has to be filed in the family court or the competent court of that jurisdiction where the child usually resides.

The application can also be made along with the divorce petition after filing the divorce petition in the same court. Both the case can be heard simultaneously.

During the pendency of the case one can ask for the visitation rights which can be granted very easily by the court.

There are some primary factors which are taken into consideration to determine a custody case. These factors help the judge to follow or come up with final decisions:

·         Young children age. Usually, the age limitation is 18 to 21 years. The court will consider any alternative arrangement as the children grow older day by day while the custody case.

·         In the case time, the court wants to know both parents’ financial condition also with their interest that if they're going to keep their children with them or not.

·         The court will also notice the relationship between the young children and each parent.

·         The mental and physical health condition of each parent will be considered in the case time.

·         The court will want to know that if each parent support or facilitate the relationship with children and with the other parent.

·         If there are any past incidents of neglect, abuse, or violence from both parents.

·         Wish of the child, i.e., with whom he/she wants to stay.

·         Social and financial condition of the parent.

As soon as you plan of seeking divorce and separation from your spouse and if you have a child then you must also start thinking about your child custody as well. While talking and discussing about your divorce matter with the advocate you must share your thoughts on the child custody as well.

Plan to file the application for child custody either simultaneously along with the divorce petition or just after moving the divorce petition as per the decision of your lawyer.

Indian Divorce Act, 1869 – Sections 41 to 44

Guardianship and Wards Act, 1890

Hindu Minority and Guardianship Act, 1956

Hindi Marriage Act, 1956 – Section 26 of the Hindu Marriage Act authorizes courts to pass interim orders in any proceeding under the Act with respect to custody, maintenance and education of minor children in consonance with their wishes.

The Special Marriage Act, 1954 – Section 38

The Parsi Marriage and Divorce Act – Section 49

Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that custody of a child upon the age of 5 years should ordinarily be with the mother.

Section 26 in The Hindu Marriage Act, 1955

26 Custody of children. In any proceeding under this Act, the court may, from time to time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible, and may, after the decree, upon application by petition for the purpose, make from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending, and the court may also from time to time revoke, suspend or vary any such orders and provisions previously made: ⁵⁸ [Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.]

Section 49 in The Parsi Marriage and Divorce Act, 1936

49. Custody of children.—In any suit under this Act, the Court may from time to time pass such interim orders and make such provisions in the final decree as it may deem just and proper with respect to the custody, maintenance and education of the children under the age of ⁴⁷ [eighteen years] the marriage of whose parents is the subject of such suit, and may, after the final decree upon application, by petition for this purpose, make, revoke, suspend or vary from time to time all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such final decree or by interim orders in case the suit for obtaining such decree were still pending. ⁴⁸ [Provided that the application with respect to the maintenance and education of such children during the suit, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.]

Section 41 in The Indian Divorce Act, 1869

41. Power to make orders as to custody of children in suit for separation.- In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the said Court.

Section 38 in The Special Marriage Act, 1954

38. Custody of children.—In any proceeding under Chapter V or Chapter VI the district court may, from time to time, pass such interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time to time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending. 1[Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.]

As per Muslim policies, the custody of a child is given to the mother, this right is referred to as the right of ‘Hizanat’, but it is not of an absolute nature, it is made keeping the interests of the child as a priority. Father can enjoy the custody if the provisions of law find mother to not be suitable for the child’s custody.

Son’s custody is with mother till- as per Hanafis till age of 7 years, as per Shias till he is weaned, as per Malikis till the son attains puberty

Daughter’s custody is with mother - as per Hanafis till the age of puberty, as per Shaafis & Hanabalis till age of marriage, as per Itna Ashari Law till age of 7

Christians are subjected to the secular Indian Divorce Act, 1869 for questions related to the ‘Child Custody’.

Parsi’s are subjected to Section 49 of the Parsi Marriage and Divorce Act, 1936 for issues pertaining to Child Custody which speaks about the Court’s power to pass orders w.r.t the custody, maintenance, education, etc. of minors.

·         Who gets the natural guardianship rights for the children?

Ordinarily, mothers, till the child turns 5 years of age, are the natural guardian and they get the custody of a child.

·         After 5 years of age who gets the custody of the children?

After 5 years of age anyone can get the custody depending on many deciding factors but the most important factor would be the development of the child/children.

·         Can a father get the custody of a child?

Yes, depending on factors even a father can get custody of a child where it can be proved that mother is not capable of bringing up the child as good as the father.

·         Will the court ask the wish of the child before deciding the custody?

Yes, if the child is old enough to speak and share his views comprehensibly in the court room.

·         What is visitation right?

During the pendency of child custody case the other parent needs to see the child and thus the court can allow the have visits to see the child at a designated place on a fixed interval. This is called visitation right.

Object and purpose of the Guardians and Wards Act, 1890 is not merely physical custody of the minor but due protection of the rights of ward’s health, maintenance and education. In considering the question of welfare of minor, due regard has, of course, to be given to the right of the father as natural guardian but if the custody of the father cannot promote the welfare of the children, he may be refused such guardianship, Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840.

Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is here that a heavy-duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration, Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673.

The word “welfare” used in Section 13 of the Hindu Minority and Guardianship Act, 1956 has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well-being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases, Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42.

Even an interim order of custody in favour of the parent should not insulate the minor from the parental touch and influence of the other parent which is so very important for the healthy growth of the minor and the development of his personality, Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479.

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