When a court grants a parent custody of a child, that parent has the legal responsibility to raise the child (if the child is less than 18 years of age). The parent whose custody is granted is responsible for the child’s financial stability, upkeep in terms of a healthy lifestyle, medical care, and emotional, physical, and mental development. Only the other parent has the right to see and interact with the child. When deciding who should have custody of a child, the family courts consider what is in the child’s best interests.
In cases where a couple has cohabited an unmarried child, is living apart from one another or is involved in a legal dispute, one of the issues that arises between them is the custody of the child. Indian laws on child custody are designed to reduce disagreements in these areas. The Applicant/Petitioner must file an application under Section 26 of the Hindu Marriage Act of 1955 before the family court of the relevant jurisdiction in order to resolve this matter. The court will then take into account the criteria outlined in Section 13 of the Hindu Minority and Guardianship Act of 1956.
When the family courts decide to give one parent custody of the child, they base their decision on an effort to ensure the child’s best future. Four distinct criteria are used to determine welfare, and they are as follows:
- Proper moral education for the involved child.
- Assurance of the child’s safety.
- Providing high-quality education
- The guardian who has been granted custodial rights must be financially stable.
The following are the child custody Law under Hindu law:
Section 26 of the court’s powers (HINDU MARRIAGE ACT).
Section 26 of the Hindu Marriage Act says that the court can make interim orders and decree provisions that it thinks are fair and right when it comes to child custody, guardianship, maintenance, and education of minor children, as long as they are in line with the children’s wishes as much as possible. The court can also make orders and decree provisions about custody, maintenance, and education of minor children after the decree, if a petition is filed for that purpose. From time to time, the court can also cancel, put on hold, or change these kinds of orders and rules.
From this, it can be seen that the court has the power to give custody of a minor child and can take it back at any time if it thinks it’s best for the child’s welfare, taking into account what the child wants. Timeline – The Court has to decide on the above application within 60 days of sending the Respondent a summons.
Section 13 of the Hindu Minority and Guardianship Act, 1956.
(1) When a court appoints or declares a person as the guardian of a Hindu minor, the minor’s welfare shall be the paramount consideration.
(2) No person shall be entitled to guardianship under the provisions of this Act or any law relating to guardianship in Hindu marriages if the court determines that his or her guardianship is not in the best interests of the minor.
Types of child custody permitted by Hindu law in India.
- Child custody
When a parent is awarded physical custody, it means the child will be under their guardianship and the other parent will be given permission to visit. This form of custody is the most common way to give a child a family-centered upbringing. The child’s environment is made fulfilling and enriching while he is still young.
- Co-parenting
In joint custody, both parents can take turns keeping the child. Contrary to popular belief, joint custody does not require a divorced couple to live together. Because of two factors, joint custody is one of the best custody solutions. No parent feels deprived. Custody and access cannot be compared. Joint custody ensures that both parents are involved in their child’s life. Second, the child gets the love of both parents. No matter the arrangements, a child whose parents have separated is psychologically scarred. The child gets equal attention from both parents.
- Third party custody
As the name implies, neither biological parent has custody. The court deems both parents incapable of raising a child, so giving either of them custody would be detrimental to the child. A child’s guardian must be related to the parents.
- Domicile
In sole custody, one parent has sole custody rights. Due to a history of abusive behaviour or inability to benefit the child, the other parent is completely kept away from the child.
Hindu law case law pertaining to child custody.
In the case of Gaurav Nagpal v. Sumedha Nagpal (2009), the Apex Court established the same factor, concluding that the laws governing child custody and guardianship are well established. The “welfare of the child” and not the rights of the parents under a currently in effect statute should be given top priority when deciding who should be granted custody of a minor child.
In the case of Pushpa Singh v. Inderjit Singh 1990, the Hon. Apex Court established the established legal principle that the mother has the primary custody of children under the age of five. The Court further concluded that there is no adequate substitute for the child’s need for his mother’s affection. The Hon’ble Apex Court also noted that the High Court had not viewed the issue from the proper angle. The proviso to Section 6A of the Minority and Guardianship Act, 1956, cannot be attached with importance, as the High Court incorrectly observed.
In the case of B. Kishore v. Manju alias Manjula (1999), where the court held that the petitioner is habituated to frequent alcohol consumption, the welfare of the child will be at risk in such cases; as a result, under such circumstances, the custody of the minor child shall be denied with immediate effect. In addition, the petitioner does not work and does not give his son any attention or show him love and affection. The minor son’s career will suffer if he remains under the petitioner’s guardianship and custody. The respondent, the mother, who can serve as the minor son’s natural guardian, can be granted custody of the son while taking into account his welfare, education, and maintenance.
In the case of Vikram Vir Vohra v. Shalini Bhalla (2010), where the court was instructed to take into account the wishes of the child because custody is directly correlated to their welfare. The child categorically stated that he wanted to stay with his mother, according to the Apex Court. We estimate the child to be between the ages of 8 and 10 and in a very formative and impressionable period of his development. In disputes over child custody, the welfare of the child is of utmost importance, and the court has ruled that the child’s welfare may take precedence even over legal requirements.
CONCLUSION –
We can infer from the foregoing that child custody under Hindu law in India takes into account a number of factors, but that these are strictly in relation to the paramount consideration of the minor child’s welfare, which includes education, maintenance, and nutritional requirements. Additionally, if it is determined that the guardian’s attitude is not in line with the child’s welfare, the court has the authority to revoke custody.
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