Child custody laws in India | Child custody lawyer in Delhi

• May 28, 2022
• By Admin

The issue of child custody crops up during divorce proceedings or judicial separation of the parents. We have various child custody laws in India that govern the process of child custody.

Well, I think this is the most crucial and tough part of the separation of couples who have kids. The matter should be carefully decided by the courts in order to protect the child’s best interest.

In this article, we will cover child custody laws in India and the best child custody lawyers in Delhi.

Who has the right over the minor child after the divorce?

Well both the parents have equal rights over the child but in most cases, the mother has an upper hand.

However, it is to be noted that while the custody is granted to only one parent, the access to the child is granted to both.

In several judgments, while assigning custody, the court has given importance to the ‘best interest of the child’ and not the ‘right of the parent’.

If the child is above 18 years of age, he/she has the full right to choose which parent to live with.

Custody under Hindu Law:

The Hindu Laws are applicable only if both the parents are Hindus. The reforms and regulations set for gaining custodial rights under the Hindu laws are prescribed in three different acts:

• Section 26 of the Hindu Marriage Act, 1955 bestows the authority of passing interim orders, judgments, amendments, etc. concerning the child’s maintenance and can dispose of the pending decree within 60 days from the date of service of notice of the court.
• This  Act deals with the maintenance, education, and care of a child and validates the child’s custody if and only if both the parents follow the Hindu religion. Under this  Act, the court can at any point of time pass interim orders, judgments, amendments, etc. for the child’s maintenance and can dispose of the pending decree within 60 days from the date of service of notice.
• Hindu Minority and Guardianship Act, 1956 declares that only biological Hindu parents have the right to seek the custody of their minor child,  step-parents are not given the right to seek the custody of their minor child only if he/she is a Hindu.
• Section 38 of Special Marriage Act 1954:  The  Act validates the child’s custody if both the parents belong to different religions or have undertaken a court marriage. Under this  Act, the court can at any point of time pass interim orders, judgments, amendments, etc. for the child’s maintenance and can dispose of the pending decree within 60 days from the date of service of notice

Custody under Muslim Law:

According to Muslim law, only the mother has sole custody of the children under the Right of Hizanat unless she is proven guilty of misconduct. The father is given the Right of Hizanat only in the absence of an able mother.

Certain general principles adopted for custody of a Muslim child are –

• Under Shia law, a mother’s right to the custody of her minor children extends until a son is two years old, and the daughter attains the age of seven. 
• Under Hanafi law, custody of a child is with the mother till he attains the age of 7 in the case of a boy; and till she attains puberty in the case of a girl.
• The mother’s right of custody continues even if she is divorced but in the case of remarriage, the custody belongs to the father.
• The consent of the child is taken into consideration if he is held to be able to understand his interests. Further, such consent has to be cross-checked to identify there’s no element of tutoring present. In case there is, the consent of a child has to be disregarded.
• The custody of a boy above the age of 7 and a girl who has attained puberty is transferred to the father who likes in the case of Hinduism is considered to be the natural guardian.
• The above rules are subject to certain exceptions wherein certain people are denied custody irrespective of their gender. These rules are:
  1. A person who possesses a bad moral character;
  2. A person who has ceased to be a Muslim and thereby converted to any other religion;
  3. A person who does not have a sound mind;
  4. The doctrine of ‘best interest of the child’ applies here also and a person who cannot take proper care of the child is not entitled to the custody;
  5. A woman who has married within prohibited relationships.

Custody under Christian law:

• There are no prescribed laws for child custody in the Christian laws but the issues are sorted by Section 41 of the Indian Divorce Act, 1869.
• Reforms and laws were set under Section 41 of the Divorce Act 1869. In addition to this, Sections 42 and 43 of the same  Act hold the right to decide upon the child’s custody once the judgment concerning separation or divorce has been passed.
• The couples, however, have an option of choosing to be protected under the Special Marriages Act. Section 38 of the Special Marriages Act, 1954 validates the child’s custody in cases where the parents belong to different religions or have taken a court marriage and explains the powers of the court over providing judicial custody.

Custody under Parsi law

The custody rights are managed by the Guardians and Wards Act, 1890. The Act primarily aims at the betterment of the child and has multiple legal provisions to ensure the same.