Child Custody

In today’s times we cannot overlook the reality that not all marriages last forever. However, this dissolution or termination of marital relationship is complicated and tedious. The issues arising from a divorce are covered under Family Law among various other issues concerning family relationships. Procedures ranging from division of property to alimony to divorce. The termination of a marriage becomes even more complex when the issue of a child is involved. The major issue of child custody can become an ugly battle.

Child custody deals with the legal guardianship of a child, who is below the age of 18 years. Custody is determined by the court during divorce or annulment proceedings of a marriage. Here we need to keep in mind that technically both parents have legal custody of the child, however only one gains the physical legal custody. Custody differs in law according to different customs and beliefs.

Child Custody under Hindu law

Guardians and Ward Act (1890) and Hindu Minority and Guardianship Act (1956) govern child custody under the Hindu Law. The two acts work in accordance with each other to achieve a result which ensures that the child is provided with emotional, financial and physical support.

Even though subject to changes, the age is taken into consideration such that the custody of a child below 5 years and older female child is given to the mother and custody of an older male child is given to the father.

Child Custody under Muslim Law

Custody under the Muslim Law revolves around the concept of Hizanat. The right of Hizanat empowers the mother the custody of the child unless she is proven mentally unfit, guilty of misconduct or there are concerns regarding the housing of the child. In such a case the right extends to the father. It extends to both male and female child however the law is modified according to the various denominations.

Child Custody under Christian Law

Governed by the Indian Divorce Act 1869, the custody of a Christian child is ordered of the court however it is temporary in nature. It can be changed according to the changes in circumstances and situations.

Types of custody

  1. Sole custody: The court when reasonably sees one party unfit for granting custody, it bestows the custody of child on a single party itself.
  2. Joint physical custody: It is a modern concept of granting custody keeping in mind the best interest of the child.
  3. Third party custody: Neither of the parents is given custody. A third party is chosen. This person can be a relative or could be court appointed guardian.