UNIVERSITY OF PETROLEUM & ENERGY STUDIES

COLLEGE OF LEGAL STUDIES

BTECH LLB CYBER LAW

SEMESTER – 4

ACADEMIC YEAR: 2020-2021 SESSIONS: JANUARY- MAY

RESEARCH PAPER
FOR
FAMILY LAW – I

TOPIC: THE WELFARE OF CHILDREN AND CHILD LABOUR: IT’S

DETERMINANTS AND EFFECTS

Under the Supervision of: AFKAR AHMED

SUBMITTED BY:

NAME: DEEPAK KAMATCHI A.P

SAP ID: 500067197
ROLL NO: R120218006

1
 TABLE OF CONTENTS

Introduction………………………………………………...3

Child custody and guardianship under Hindu law…………4

Child custody and guardianship under Muslim law………..6

Child welfare & federation assistance …………………….9

Conclusion………………………………………………...14

2
INTRODUCTION
This research paper will be providing the large variants of benefits and custody methods which is
prevailing in India, as it gives the broad ways which dealt under custody if children under Hindu
law, which goes with the varied steps for son and daughter as well, this statutes will cover up the
acts of Hindu Minority and Guardianship Act, 1956 (HMGA) and Guardians and wards Act,
1890. The another variant of this custody and child labor is under the custody of Muslim law,
where in this as well the son and daughter were treated in varied way and the father’s right of
hizanat were also plays the vital role in the children custody and in the effects of child labor
under the Muslim law. The next determinant in under the Christian law, which as well allows the
custody of children in the concept of family law in India and which is controlled under the
legislation of Indian divorce Act, 1860 which dealt with the important factors of custodies of the
children in the religion laws of the country.
When parents end their relationship, determining who gets the children is one of the most
important decisions they will have to make.  Legal custody of a child means having the right and
obligation to make decisions regarding the child’s upbringing. These may include schooling,
religion, medical care and lifestyle choices.  When the parents cannot make this decision without
a dispute, allegations against their spouse or partner are widespread in the effort to win custody. 
False accusations of child abuse (emotional, physical and sexual), financial and/or educational
incompetency and substance abuse are common claims made by one parent against the other.
With the recent advances of technology, courts are now having to deal with decisions regarding
unborn children.  In several recent custody cases, couples have fought over the custody of frozen
embryos.  Fertilized embryos contain the genetic material of both the mother and the father. 
Based on the history of case law, the mother frequently wins this fight.  However, the father is
given the right to not pay child support in certain instances.  The most recent case law on the
legal status of frozen embryos is that either genetic parent has an absolute right to prevent
implantation of any frozen embryo.

3
CHILD CUSTODYAND GUARDIAN SHIP UNDER
HINDU LAW
The Hindu law of guardianship has been codified and reformed by the Hindu Minority and
Guardianship Act,1956. With the help of the provisions of the act, it will be convenient to
discuss the subject matter under suitable sub-headings.

Guardianship of person of minors

Under the Hindu Minority and Guardianship Act,1956, minor means a person who has not
completed the age of eighteen years. A minor is considered to be a person who is physically and
intellectually imperfect and immature and hence need someone’s protection.
1. Natural guardians
2. Testamentary guardians
3. Guardians appointed or declared by the court. Other than the types mentioned, the two
other types of guardians, existing under Hindu Law are de-facto guardians and guardians by
affinity.
A - Father- a father is the natural guardian of his minor legitimate children, sons and daughters.
A father cannot be deprived of the natural guardianship of his minor children unless he has been
found unfit. The position of adopted children is at par with that of born children. In case the
father is incapable, or fails or refuses to perform the functions the mother can be the guardian.
B - Mother – the mother is the guardian of the minor illegitimate children even if the father is
alive. Mother’s right to guardianship stays even if she has converted her religion. The position
also remains the same even if the child is an adopted child and not a natural born child.
C - Husband is the guardian of his minor wife.

Guardianship Of Minors Property

The natural guardian of the person of a child is also the guardian of the property of the concerned
child. But a natural guardian is not the guardian of the minor’s undivided interest in the joint
family property. Neither the natural guardian nor the court can appoint a guardian of the minor’s
undivided interest in the joint property.
The father can appoint a testamentary guardian on his own will. If the father does not appoint,
the mother’s appointee will resume the responsibility of the guardian. Guardians appointed by
the court are the guardians appointed by the virtue of the courts empowerment. Under the
Guardians and Wards Act,1980, the jurisdiction is conferred on the district court. The district
court on its own discretion appoints any person whenever it thinks it to be better for the welfare
of the child.

De-Facto Guardian:

A de-facto guardian is a person who takes continuous interest in the welfare of the minor’s
person or in the management and administration of his property without any authority of law.
Hindu jurisprudence has all along recognized the principle that if liability is incurred by one on
behalf of another in a case where it is justified, then the person, on whose behalf the liability is

4
Incurred or, at least, his property, is liable, notwithstanding the fact that no authorization was
made for incurring the liability.

Guardianship by affinity:

In pre-1956 Hindu law there existed a guardian called guardian by affinity. The guardian by
affinity is the guardian of a minor widow. Mayne said that "the husband's relation, if there exists
any, within the degree of sapinda, are the guardians of a minor widow in preference to her father
and his relations. 'The judicial. pronouncements have also been to the same effect. The
guardianship by affinity was taken to its logical end by the High Court in Paras Ram v. State In
this case the father-in-law of a minor widow forcibly took away the widow from her mother's
house and married her for money to an unsuitable person against her wishes. The question before
the court was whether the father in-law was guilty of removing the girl forcibly. The Allahabad
HighCourt held that he was not, since he was the lawful guardian of the widow. But as per the
provisions contained under the Prohibition of Child Marriage Act, above referred provision may
be apply to this case.

5
CHILD CUSTODYAND GUARDIANSHIP IN MUSLIM
LAW
As per my consideration, Muslim law is of utmost importance when it comes to gauging the
actual representation of women when asking for the custody and guardianship of children. As for
that matter the chapter has been further divided into suitable sub-headings.
The term guardianship connotes guardianship of a minor i.e. a person who has not attained
puberty. Puberty is assumed to have been attained at age 15years in general. However, as far as
guardianship is concerned, a Muslim will be governed by the Indian Majority Act of 1875 which
provides that the age of majority is 18 years and 21 years if the minor has been appointed a
guardian by the court. A guardian will be appointed by the court under the Guardian and Wards
Act of 1890 for the welfare of the minor.

Kinds of Guardianship:

Muslim law recognizes three types of guardianship

(i) guardianship in marriage (Jabar)
(ii) guardianship of persons of the minor for custody (Hizanat);
(iii) guardianship of property which is divided into three sub groups:
a. de jure guardianship;
b. de facto guardianship;
c. Certified guardianship.
Under Sunni Law the mother is entitled to the custody of a male child up to 7 years and a female
child till she attains puberty. Under Shia law she has custody of male child till the age of 2 years
and female child till the age of 7 years; She is the de facto guardian; Under Sunni law failing the
mother the custody of a boy up to 7 year and girl up to puberty goes to the following female
relatives in order:-
(i) Mother’s mother how high so ever;
(ii) Father’s mother how high so ever;
(iii) Full sister;
(iv) Uterine sister;
(v) Consanguine sister;
(vi) Full sister’s daughter
(vii) Uterine sister’s daughter;
(viii) Consanguine sister’s daughter;
(ix) Maternal aunt in like order as sisters;
(x) Paternal aunt in like order as sisters.
In default of mother and female relatives, the custody goes to the following:
(i) Father;
(ii) Paternal grandfather (nearest)
(iii) Full brother;
(iv) Consanguine brother;
(v) Full brother’s son
(vi) Consanguine brother’s son;
(vii) Full brother of the father;
(viii) Consanguine brother of the father;

6
(ix) Son of father’s full brother;
(x) Son of father’s consanguine brother
Under Shia law the custody goes to the mother, failing her to the father and failing him to
the father’s father.
Under Sunni law the father is entitled to custody of the boy over 7 and an unmarried girl who has
attained puberty and in Shia law to the custody of a male child over two year and unmarried girl
of 7 years. The custody of an illegitimate child goes to the mother.

Rights Of Hizanat:

In the case of Imambandi v.Mustadi the property in the suit belonged to Ismail Ali Khan
(Sunni). It was alleged by the plaintiff that on his death he left three widows one of whom,
Zohra, acting on behalf of herself and her two minor children purchased the share in the suit for
the possession of which they brought action. The reliefs sought were
(i) Declaration of the title and status of plaintiff’s
vendors;
(ii) A decree for possession of shares covered by the
sale deed;
The defendants contended that Zohra was not a married wife and that the children were not
legitimate and that the shares did not pass under the sale. The Privy Council held that Zohar and
her children were entitled to the shares. The important question was whether the plaintiffs
acquired any title to the infant’s share under the sale by the mother. The defendants contended
that the mother had no power to convey her children’s interest to the plaintiffs. It was held that
although the mother is entitled to the custody of the person of the minor, she is not the natural
guardian and the father alone or if he is dead his executor (under Sunni Law) is the legal
guardian. The mother has not power to deal with the minor child’s property. She may incur
responsibilities but can impose no obligation on the infant. This rule is subject to certain
exceptions provided for the protection of a minor child if there is no de jure guardian i.e. the
court may appoint the mother as a guardian of the property. It was further held that if the mother
pledges (mortgages) the properties of the minor child it is unlawful unless she is the executrix (of
the father) or is authorized by the guardian of the minor or by the judge. Then it is lawful and the
right of possession and user is established under the Muslim law.

Termination of Hizanat:

Disqualification of the Hizanat can be categorized into 5 heads:-

General disqualifications – a minor cannot act as a guardian of any minor other than his own
wife or child, a non Muslim parent etc.
(i) Disqualification effecting females – the mother or female’s relatives can be disqualified on
the following counts-.
(a) She leads an immoral life –
i. Adultery ;
ii. Becomes a prostitute;
iii. Has committed criminal offence;
iv. Is a professional singer or mourner
b. She neglects the child;

7
c. She marries a person not related to the child within prohibited degrees (Rahima Khatoon v.
Saburjanesa);
d. During subsistence of marriage she goes and resides at a place at a distance from the father’s
place;
(ii) Disqualification affecting males - No male relative, outside of prohibited degrees, is allowed
to have custody of an unmarried girl.
(iii) Disqualification affecting parents –
Mother gives up custody of boys after 7 and girls after puberty (Sunni Law) and boys after 2 and
girls after 7 (Shia law). The mother does not lose her right to custody by divorcing the father.
The father is a natural guardian but will be disqualified by the court for –
 Cruelty to wife or children;
 Felony;
 Adultery (though not if the woman is not brought into contact with the child);
 If he is unfit in character and conduct;
 If he is unfit as regards external circumstances;
 If he waives his right of custody;
 If he enters into agreement to the contrary
 If he goes out of the jurisdiction of the court or if intends togo abroad;
(iv)Disqualification affecting husband – husband is not entitled to custody of minor wife unless
she attains puberty or such age that would permit consummation of marriage. In this
circumstances, the mother is the guardian. However, minority of the husband does not deprive
him of his right to guardianship.

8
CHILD WELFARE ACT INORDER TO LOWERDOWN
THE RATE OF CHILD LABOUR
LAWS DURING 1960’S

• RAISED CHILD WELFARE SERVICES FUNDING TO $ 25 MILLION.

• EACH STATE ALLOTMENT TO BE NO LESS THEN 50 THOUSAND.
• NEW AND SEPARATE FUNDING BYTHE DEPARTMENT OF HEALTH, EDUCATION,
AND WELFARE.
• 1962 RENAMED ADC PROGRAM TO AID TO FAMILY WITH DEPENDAT CHILDREN
(AFDC) WHICH ALLOWED STATES TO PROVIDE FOSTER CARESUPPORT.

CHILD ABUSE PREVENTION AND TREATMENT ACT

• SYSTEM TO RECIVING AND RESPONDING TO ALLEGATIONS OF CHILD ABUSE

OR NEGLECT.
• ALSO IN PROTECTING CONFIDENTIALITY OF RECORDS.1978
• THE CHILD ABUSE PREVENTION AND TREATMENT AND ADOPTION ACT.
• THIS ACT ESTABLISHED AND RAN A NATIONAL ADOPTION AND
FOSTER CARE SYSTEM.
• ALSO ALLOWED BARRIES TO BE REMOVED AROUND ADOPTION OF CHILDREN
WITH SPECIAL NEEDS.

THE FEDERAL ADOPTION ASSISTANCE PROGRAM.

• FEDERAL SHARE PROGRAM COST WAS CHNGED TO EQUALL IN ALL STATES.

• “THE LAW ALLOWED STATES TO STIPULATE WHAT THE SPECIAL NEEDS
FACTORS WOULD BE BUT IT SUGGESTED A CHILD’S AGE, MEMBERSHIP IN
A SIBLING GROUP, RACE/ETHNICITY, AND EMTIONAL, PHYSICAL OR MENTAL
DISABILITIES.
• REQUIRED STATES TO MAKE ALL “REASONBLE EFFORT’S” PREVENTING
PLACEMENT IN FOSTER CARE, TO REUNITE CHILDREN WHO HAVE BEEN
IN FOSTER CARE.

IN THE YEAR 1990

THE SECOND SESSION 101 ST CONGRESS MADE SEVERAL AMENDMENTS TO
CHILD WELFARE SERVICES / TITLE IV-E.
• FOSTER CARE AND THE ADOPTION PROGRAM.
• THE AMENDMENTS REQUIRED EACH STATE TO SEPARATE TRADITIONAL
ADMINISTRATIVE COSTS AND CHILD PLACEMENT COST.
• THIS ALLOWED EACH STATE TO OFFER YOUTHS INDEPENDENT LIVING
SERVICES WHO AGREE OUT OF FOSTER CARE UP TO 21. 1993
MADE SIGNIFICANT AMENDMENTS IN CHILD WELFARE ACT.
• NEW SUBPART 2 “TITLE IV-B”.

9
• AUTHORIZING FUNDS TO STATES THATPROVISION IN “FAMILY SUPPORT” AND
“FAMILY PRESERVATION”.
• ONLY 10% ON ADMINISTRATION AND 90% ON EACH IN THE TWO CATEGORIES
OF SERVICE.
• THERE FOR EACH STATE HAD TO REPORT ALL PROGRESS IN BOTH
CATEGORIES.

IN THE YEAR 1994

MADE ANOTHER AMENDMENTS IN THE SESSION 103RD CONGRESS.
• THAT IS MADE AVAILABLE TO ALL CHILDREN IN FOSTER CARE. NOT THE ONES
THAT ELIGIBLE.
• HEARINGS WILL BE HELD EVERY 12MONTHS AFTER INITIAL HEARING, CASE
PLAIN AND CASE REVIEW PROCEDURES. 1996
CONGRESS AMENDED THE SOCIAL SECURITY ACT IN REGARDS, THAT NO STATE
OR
ENTITY THAT RECIVES FEDURAL FUNDING CAN NOT DISCRIMNATE IN ADOPTION
OR
FOSTER CARE PLACEMENT ON BASIS OF RACE, COLOR OR NATIONAL ORIGIN.

IN THE YEAR 1997

PROVISIONS REGARDING HEALTH INSURANCE FOR ADOPTIED CHILDREN WHO
WAS NOT ELIGIBLE UNDER TITLE IV-E.
• LAW REAUTHORIZED NEW PROGRAM UNDER TITLE IV-B, PART 2 BY
RENAMEING IT PROMOTING SADE AND STABLE FAMILIES PROGRAM.
• THIS ACT PROMITED THE “TIME-LIMITED FAMILY REUNIFICATION” AND
“ADOPTION PROMOTION AND SUPPORT SERVICES”.
• THIS REQUIRED HHS TO ESTABLISH CHILD WELFARE OUTCOME TO BE
MEASURED AND PUBLISHED IT’S DATA FOR ANNUALLY PROFORMANCE

IN THE YEAR 1999

THE FOSTER CARE INDEPENDENCE ACT WAS ENACTED IN THE 106TH CONGRESS.
• REVISED THE STATE ALLOCATION FORMULA TO USE THE CURRENT FOSTER
CARE DATA.
• THIS WAS THE FIRST YEAR THAT NATIONAL YOUTH IN TRANSITION DATABASE
WHICH COLLECTED DEMOGRAPHIC AND ITS OUTCOME OF CURRENT AND
FORMER YOUTHS.

IN THE YEAR 2001

THE PROMOTING SAFE AND STABLE FAMILIES
• WHICH REAUTHORIZED FOUNDING FOR THE NEXT 5 YEARS.
• INCLUDING THE AMENDMENT TO STRENGHENING PARENTAL RELATIONSHIP
BY ADDING THE DEFINITION OF HEALTHY MARRIAGES TO THE “FAMILY
SUPPORT SERVICES.”
• ADDING THE SUPPORT FOR INFANT SAFE HAVEN PROGRAMS, WHICH WILL BE
FOUND UNDER THE DEFINITION OF FAMILY PRESERVATION SERVICES.
• OPENING UP NEW FUNDING.

10
• THERE WAS AUTHORIZED FUNDING FOR POST-SECONDARY EDUCATION AND
TRAINGING VOUCHERS.

IN THE YEAR 2003

THE ADOPTION PROMOTION ACT
• AUTHORIZING INCENTIVE PAYMENT FOR ANOTHER FIVE YEARS .
• THIS AMENDEDMENT OF INCENTIVE AWARDS TO CHILDREN WITH SPECIAL
NEEDS.
• WHICH LIMITED FUNDING FOR CHILDREN NINE AND UNDER WITH SPECIAL
NEEDS.
• THEN AN INCREASED INCENTIVE FOR ADOPTION OF NINE AND OLDER IN
FOSTER CARE.

IN THE YEAR 2005

THE FAIR ACCESS TO FOSTER CARE ACT
• FOR STATES TO CLAIM REIMBUREMENT UNDER TITLE IV-E.
• EVEN ELIGIBLE FOSTER CHILDRENS MAINTENANCE PAYMENTS.
• WHICH IS PROVIDED TO HIS/HER INSTIUTIONAL, FAMILY,FOSTER CARE
PROVIDER, AND FOR PROFIT PLACEMENT AGANCY.
• ALSO MADE CLARIFING THE MEANING OF “HOME OF REMOVAL.”
• PUTTING LIMITAIONS ON THE STATES CLAIM FOR REIMBURSEMENT COST.
• THIS ALSO INCLUDED THE LENGTH A CHILD MAY BE A “CANDIDATE” FOR
FOSTER CARE.
• INCLUDED THE PLACEMENT OF A CHILD IN AN UNLICENSED RELATIVE HOMES
OR OTHER SIBLINGS HOME THAT ARE
• “INELIGIBLE” FOR THE FOSTER CARE PROGRAM.
• THE STATES POLICEYS AT A MINIMUM MUST “ENSURE THE SAFETY AND
WELLBEING OF THE CHILD, PARENTS, AND FAMILY”.

IN THE YEAR 2006

THE SAFE AND TIMELY INTERSTATE PLACEMENT ACT.
• FEDURAL MANDATES A 60-DAY DEDLINE IN COMPLETING INTERSTATE HOME
STUDY.
• WITH ONLY A 14-DAY DEDLINE FOR THE STATE TO ACT ON THIS INFORMATION.
WITH AUTHORIZATION OF $10 MILLION DOLLARS FOR EVERY STATE AS AN
INCENTIVE TO COMPLEAT INTERSTATE HOME STUDY WITH IN 30 DAYS.
• FUNDS WERE AVAILABLE THE VERY FIRST DAY.
• “NO FUNDS WERE APPRPRIATED UNDER THIS AUTHORITY AND IT IS NOW
REPEALED.”
• THIS RESTRICTED STATES TO CONTRACT PRIVATE AGENCY TO DO HOME
STUDY FOR THE CHILDREN THAT WILL NO BE REUNIFIED WITH FAMILY.
• THE LAW REQUIRS THAT ALL INSTATE AND OUT OF STATE PLACEMENTS BE
PART OF THE CASE PLAIN FOR REVIEW IN AN ADIQUIT PLACMENT.

11
• PART OF THE COURT IMPROVEMENT FUNDING MAKES NOTIFYING FOSTER
PARENTS, PRE-ADOPTIVE PARENTS, OR RELATIVE CAREGIVERS INFORMATION
ON PROCEDDINGS REGARDING THE CHILDREN.
• ALL MEDICAL AND EDUCATION RECORDS FOR EACH CHILD IN FOSTER CARE
MUST BE UP TO DATE.
• ALL FOSTER PARENTS AND OTHER PEOPLE LIVING WITH IN A HOME MUST
HAVE BACKGROUND CHECKS DONE BEFORE FOSTER CHILDREN CAN BE PLACED
IN THE HOME.
• EACH STATE IS REQUIRED TO PROVIDE A WELL-PLAINED VISIT WITH THEIR
CASE WORKER AT LEAST ONCE A MONTH.

IN THE YEAR 2007

THE 110TH CONGRESS AMENDED REIMBURSEMENT RATE TO 70 PERCENT

IN THE YEAR 2008

THE 110TH CONGRESS APPROVED CHILD WELFARE BILL
• FOSTERING CONNECTIONS TO SUCCESS AND INCREASING ADOPTIONS.
• THIS WAS THE FAIR-REACH OF FENDERAL CHILD WELFARE FINANCING SINCE
1980.
• UNDER THE TITLE IV-E THIS PROVIDED KINSHIP GAURDIANSHIP ASSISTANCE
PAYMENTS FOR THE CHILDREN THAT WERE LIVING WITH THEM IN THE FOSTER
CARE SYSTEM.
• THE STATE WILL CONTIUNE TO PROVIDE PAYMENT UNTIL A CHILDS 21ST
BIRTHDAY REGARDING THEY ARE IN SCHOOL, WORKING, OR REMOVING
BARRIERS OF EMPLOYMENT, OR HAVE A MENDIACL CONDITION THAT KEEPS
THEM FROM ACHIEVING ANY OF THOSE THINGS.

IN THE YEAR 2009

ALLOWING STATES TO FILE REMEMBERSMENT COAST FOR CHILDREN IN FOSTER
CARE, ADOPTION, AND KINSHIPGUARDIANSHIP ASSISTANCE.
ALSO TO INCLUDE PAYMENT OF TRANSPORTING A CHILD TO HIS/HER “SCHOOL
OR ORIGIN.”

IN THE YEAR 2010

• IN AUGUST CONGRESS PASSED EDUCATION JOBS AND MEDICAID
BILL
• A TEMPORATY INCREASE IN THE GENERAL FUND FOR A 3.2 PERCENTAGE
IN THE FIRST THREE MONTHS, THEN A 1.2 PERCENT FOR THE NEXT 3
MONTHS.
• THEN THE PROGRAM WILL RETURN TO IT’S REGULAR REIMBURSEMENT
RATES BY JULY 1, 2011.
• THE PATIENT PROTECTION AND AFFORDABLE CARE ACT
• THAT YOUTH THAT ARE AGING OUT OF CARE HAVE THE INFORMATION
AND POWER TO MAKE HEALTH CARE DECISIONS.
• THIS ALSO INCLUDES FOSTER CARE INDEPENDENCE PROGRAM.

12
IN THE YEAR 2011
• THE CHILD AND FAMILY SERVICES IMPROVEMENT AND
INNOVATION ACT
• THAT EACH STATE MUST PROVIDE (ON-FEDERAL) FUNDS TO RECEIVE THE
FULL AMOUNT ALLOTED THE CHILD WELFARE SERVICES PROGRAMS.
• ALSO REQUIRE STATES TO PROMOTE SAFE AND STABLE FAMILIES WITH
AN DESCRIBED OF THE POPULATION THAT IS AT THE GREATES RISK.

13
CONCLUSION
This research has shown that the family lives of children are becoming increasingly complex.
Not only are children being born in greater and greater numbers to couples in common-law
unions, but they are more at risk of experiencing their parents' separation and at an ever younger
age. The type of union parents enter into to raise their family has far-reaching consequences on
the lives their children will lead. As we have seen, common-law unions are more likely to end in
separation than marriages; children of these common-law unions are more likely than children
from broken marriages to live exclusively with their mother, they are more likely to see their
father irregularly or not at all; and are less likely to benefit from regular child support payments.
Children whose parents divorce rather than separate are more likely to be covered by a court-
ordered child support agreement but children covered by a private agreement are more likely to
receive regular support payments than those covered by a court-ordered agreement. 

14