RESEARCH ON CHILD CUSTODY UNDER HINDU LAW

Child custody basically means the custody of a child after the divorce of the
parents. It is one of the hottest issues as it arises just after the completion of
legal procedure of the divorce. The main victims of the divorce of the parents
are the children only. Divorce leaves a very bad impact on the minds of the
children. Children are not mature enough to understand the reasons behind
their parents’ divorce. Every child dream of having a healthy, wealthy and
happy family. Children want their parents with them in every walk of their
lives. For example, if you have ever visited a nursery or a pre nursery class, you
might have seen the students crying and almost all the students have a same
reason for crying and the reason is that they all miss their parents and almost
all the students feel comfortable with their parents than their teacher. This is
because a child likes the company of his/her parents. It is very clear that a child
needs the guidance and company of his/her parents. But when the parents get
separated, then the children feel mentally and emotionally disturbed. Child
custody is very important after the divorce of the parents because it is
necessary for the development of a child. Parents do not want to lose their
children so they legally fight for the custody of their children. The custody of a
child, who is less than 18 years of age is given either to a mother or to a father.
The parent to whom the custody of a child is given has the responsibility of the
maintenance of the child. Now, here are some questions arising like, what are
the rights of the parents over a child after divorce, what is the whole
procedure for the custody of a child, what are the types of custody and which
laws are made for child custody? Section 26 of the Hindu Marriage Act 1955
and section 38 of Special Marriage Act and Hindu Minority and Guardianship
Act 1956 provides answers to these questions.

RIGHTS OF PARENTS OVER A CHILD AFTER THEIR DIVORCE

If a child is a minor (less than 18 years of age), then both the parents are given
equal rights (right of custody) over the child. The family courts have the last
say in this regard. The main aim of the family court is to maintain a balance
between both the parties and as its decision, it gives custody of a child either
to a mother or to a father and other parent is provided a right to stay in touch
with his/her child so that a child gets the love of both the parents.
 WHO HAS THE PRIORITY CLAIM TO THE CUSTODY OF A CHILD?
Under Hindu law, if a girl is above or equal to the age of 18 year, then her
custody will be given to her mother and if a boy is above or equal to the age of
18 years, then his custody will be given to his father.

WHO GETS THE CUSTODY OF A MINOR IF A MOTHER IS FINANCIALLY

WEAKER AS COMPARED TO A FATHER BUT THE FATHER HAS REMARRIED
AND HAS CHILDREN WITH HIS SECOND MARRIAGE?
In this situation, the guardianship of a child cannot be taken from the mother
due to her weaker financial status. But in this case, the father of the child has
to provide money for the child’s maintenance to child's mother.
CONSIDERATION FOR PASSING THE ORDERS FOR THE CHILD CUSTODY
The Family court takes into account various factors, while passing the orders
for the custody of a child and these factors are:
❖ Age of the child
❖ Sex of the child
❖ Demands and wishes of the parents
❖ Welfare of the child
❖ Wishes of the child

TYPES OF CHILD CUSTODY IN INDIA

• PHYSICAL CUSTODY OF A CHILD: When a parent is given a decree of
physical custody of a child, it means that a child will live under the
guardianship of a parent and the parent will be given a permission to
meet a child whenever he/she wants to meet. This type of custody is
very common nowadays. This type of custody allows a child to get love
and affection from both the parents after their divorce.
• JOINT CUSTODY: This is a type of custody in which the custody rights are
vested in both the parents. This custody allows both the parents to keep
the child with them, but in turns. Under this, a child will live with his/her
mother for the decided duration of time and after the completion of the
 duration of time, a child will live with his/her father for the same period
of time and this process will continue.
• THIRD PARTY CUSTODY: Under this type of custody, the custodial right
lies with the third party and not with the biological parents. This custody
is provided if the court deems that both the biological parents of the
child are incapable of taking the responsibility of the child. A third party
is one who is related to the biological parents and is given the
guardianship of the child.
• SOLE CUSTODY: It is a type of custody, in which the entire rights of the
custody of a child are given to only one biological parent and the other
biological parent is not given any right to meet a child just because of
his/her past history of abusive behaviour.

DETERMINATION OF THE KIND OF CUSTODY TO BE GRANTED

The final decision of the court is based on the conditions that are mentioned
above. Until the final order of the court, the parent, who is given custody of a
child end up with the physical and legal custody of a child. If court has taken a
decision to grant other kinds of custody or any other arrangements, then the
clarification about the decision must be provided to both the parents.

CHILD CUSTODY UNDER HINDU LAW:

Section 26 of the Hindu Marriage Act 1955, Section 38 of Special Marriage Act
and Hindu Minority and Guardianship Act 1956 provides the rules and laws for
getting the child custody. These acts are related with the custody of the minor
child.
SECTION 26 OF HINDU MARRIAGE ACT 1955: This section deals with the
maintenance of a minor child which includes welfare of the child, wishes of the
child and education of the child. Under this act, the court passes interim
orders, from time to time, which are just with regard to the custody of the
child. Under this act, various provisions are made by the court for the welfare
of the child for whom two parties are fighting for his/her custody. The court
also keeps in the mind, the conduct of the parents. The court also considers
the capacity of both the parents. The custody of the child will be given by the
court to parent on the basis of his/her capacity. Under this, the age and sex of
the children are taken into the consideration. The wishes of the parents are
also taken into the consideration by the court. But in the case of a child who is
matured enough to take an intelligent decision, then more attention will be
given towards the wishes of the child.
SSECTION 13 OF HINDU MINORITY AND GUARDIANSHIP ACT 1956: According
to this section, the Court has to consider the welfare of a child. Under this Act,
no person will be given the Guardianship of a child, if the court feels that the
Guardianship of a person is not for the welfare of a child.
SECTION 38 OF SPECIAL MARRIAGE ACT 1954: This act deals with the custody
of a child. This act validates the custody of a child if both the parents have
done a court marriage or if the parents of the child belong to different
religions. Under this act, in any proceedings under chapter 5 or 6, the district
court has the right to make various provisions with regard to the custody of
the child. The court may pass the interim orders from time to time, for the
welfare of the children. The orders are passed by the court while keeping in
mind the welfare of the children. The provisions are also made for the
education of the minor children.
And if the proceedings are ended, then the court has the right to give a
final order. The court will see the benefits of the child while making the
decision. Sometimes, the court also takes the opinion of the child for passing
an order. The decisions or the orders passed by court are not full and final but
actually they are flexible. Flexible means, the court makes the changes,
modifications or sometimes take the decision back depending upon the
situation and conditions of the child.

Under Hindu law, the court considers various factors for the custody of a child.
The court has the authority to revoke it's previous decision, made with regard
to the custody of a child, if the court finds any kind of bad behaviour by the
guardian with regard to the welfare of the child.

REFERENCES:
https://www.myadvo.in/blog/child-custody-laws-in-India/
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