Child Custody

 Child Custody

Introduction

one of the most vital matters that come up after receiving a divorce is the matter of child custody. It

refers to the caring and maintenance of the child less than 18 years of age by the custodial parent.

The term ‘child custody’ refers to the legal and practical relationship between a parent and his or her

child.

Definition

Parent will have care, custody, and control of a child by the decision of the court. In some cases, the

parents may share the custody of the child, but only one parent, or to both parents jointly may be

given the actual physical custody of the child.

Types of custody

1. Legal Custody

2. Physical Custody

3. Joint Physical Custody

4. Sole Custody

Legal Provisions

In India issues involving child custody and guardianship, The Guardians and Wards Act, 1890 is the

universal law. However, India also sanctions laws pertaining to different religion.

Hindu Law:

 Section 26 of Hindu Marriage Act, 1995 states the Custody of Child.

 Section 38 of Special Marriage Act, 1954 deals with the Child’s Custody if both the parents

belong to different religions.

 Hindu Minority and guardianship Act, 1956 states that only Biological Hindu parents have

right to seek the custody of their minor child.

Muslim Law:

In Muslim law, only the mother has sole custody of the children under the right of Hizanat unless she

is proven guilty of misconduct.

 Mother have right to the custody of her minor children under the Shia law, until a son is 2

years old, and the daughter attains the age of 7.

 Under Hanafi law, also provided that custody of a child is with the mother until a son attains

the age of 7 and daughter attains puberty.

 The mother’s right of custody continues even if she is divorced but after remarriage, the

custody transfer to the father.

Case Law

Roxann Sharma V/S Arun Sharma

In this case, court held that the both have equal rights to get the custody but the child is under a

very young age according to section- 6(a) of Hindu Minority and Guardianship Act, 1956 mother will

get the custody for the reason of welfare of the child. Court furthers says that the child should be

treated as the chattel and father is treated as the natural guardian but for the child of very young

age mother is the best option because at the very young age child have different needs and require

more care, which is only fulfilled by mother. The Court given this decision after examining the

welfare, needs and care of the child. Father can have the custody in the minor child case but not in

the very young case.

Conclusion

The consideration of consummate significance in a proceeding for the custody of a minor is

the weal of the child. No legal right, preferential right or any other right holds further

significance than the well- being of the child. Any court of law subventions guardianship to

that party who can assure the court that the well-being of the child stylish lies with them.