When parents divorce or separate legally, the custody of their children is often
a contentious issue that must be resolved by a court of competent jurisdiction.
The whole process of separation is unpleasant, but the custody battle is much
more so. When it comes to children under the age of 18, custody may be defined
as "guardianship" in plain English.
Both parents have an equal right to have
custody of their children, but the ultimate decision is completely up to the
discretion of the court. According to the most recent available data, one couple
gets divorced per year out of every 100 marriages, as of 2019. In 2015, a mother
stated that the kid's father was giving money to their boy in exchange for
picking his father for custody, and the mother's fear was that the youngster was
not mature enough to make a choice about which parent he would like to reside
Different Types of Child Custody
It is also necessary to understand the several forms of child custody in order
to fully comprehend child custody:
- Physical Custody:
In this form of custody, the kid is allowed to live with one of the parents
who has been selected by the court, while the other parent is allowed to
meet and interact with the child on a regular basis.
- Legal Custody:
This type of custody allows the child to live with both
- Joint Custody:
Under this kind of custody, the kid lives with both of his or
her parents on a reasonable basis, with the length of time spent with each
parent determined by mutual agreement of the separated parents.
- Sole Custody:
In this form of custody arrangement, the kid is given
exclusive custody to one parent if the other parent is determined to be
unsuitable to provide for his or her upbringing.
- Third Party Custody:
In this sort of custody, the child's custody is
transferred to a third person, such as a guardian, rather than to the parents.
Laws Regarding Child Custody in India
The following are the legal provisions that exist in the Indian Constitution
that are dependent on our religious affiliation:
In accordance with Hindu law, custody is governed by sections 26 and 38
respectively of the Hindu Marriage Act 1955, and sections 26 and 38 respectively
of the Special Marriage Act 1954 and the Hindu Minority and Guardianship Act
According to Muslim law, only the mother has the right to seek custody of her
children under the Right of Hizanat, which means "right of the mother to seek
custody of her children."
When a divorce is granted, the child custody provisions of the Divorce Act 1869
(section 41) are suspended until a separation order is given.
Curse of the Parsi Law:
which recognises the right to child custody under the
Guardian and Wards Act 1890 and places a great value on the wellbeing of the kid
Which of the following considerations, in the opinion of the court, defines the
wellbeing of a child when considering which parent should be granted custody:
- The child's well-being is ensured.
- Affluent upbringing
- Providing a safe haven
- Providing a high level of living comfort
- Providing the highest quality education and knowledge
- Ensuring the mental well-being of the kid
- The manner in which the parents behave and approach their children
This includes the parent's or guardian's financial situation.
Who has the first right of refusal to make a custody claim for the child?
The honourable court, as well as other courts, have consistently said that when
transferring responsibility for a kid, the sole criterion taken into account is
the child's well-being, regardless of the circumstances.
In accordance with Hindu Law, the mother is normally granted custody of a kid
who is less than five years old. In the majority of situations, the father is
granted custody of older males, while the mother is granted custody of older
girls. Even after all of this, the court takes into account the preference of
the kid who is older than nine years old when making its judgement.
Expenses incurred by the child
Whatever the situation, whether a single parent or both parents have custody of
a child, it is the responsibility of both parents to cover all expenditures
associated with the child's education, sports activities, health, and other
What is child support and how does it work?
Another term for this is the money that has been paid by a parent to the parent
who has been granted custody of a kid. The parent who does not have physical
custody of the kid is the one who is liable for paying child support to the
The following are covered under child support:
- The immediate environment in which the kid is now residing.
- Expenditures on education
- Medical and health-related services
- Extracurricular activities such as sports and other extracurricular
When does child support cease to be paid?
If a kid is under the age of eighteen, child support is required to be paid by
It should be noted that there are several circumstances in which a parent is
not compelled to pay child support, and they are as follows:
- The kid has been married.
- This youngster is at least 16 years of age and has willingly left his or
her parents' household.
The decision of giving the custody is taken by the court after taking the
personal laws of both the parties taking into consideration but the welfare of
the child and his/her good upbringing is the top most priority for the law.
Preferences are given by the parent and child but the final decision is in hands
of the court. Child support explains that the mentality of the parents should
never be against the co-parent but the welfare and interest of the child
regardless of what is going in their relationship.
Written By: Samridhi Sharma
, B.com LLB - Chandigarh University, Ghauran
Email: [email protected]