In this blog post, Pravesh Naveriya from RDVV, Jabalpur, talks about child custody in India.

Child custody is one of the most emotional topics that the judiciary is supposed to deal with, almost every day. In legal terms, child custody is the process of allotting a right to one of the parent to have over the other regarding their child either during or after the decree of divorce or judicial separation is passed. The parent who gains the custody of the child is supposed to keep the child under his/her guidance and care, and the other parent, if he wants, can only approach/meet the child as per the guidelines of the court.

Child Custody in India

The rules and provisions for the custody of a child depends upon the religion of the child and the parents. The custody of a child in India is governed by the personal law of the child along with the Guardians and Wards Act, 1890. The Guardians and Wards Act, 1890 applies to each and every citizen of the country. The court finds a harmonious way to combine the two and find out who would be a better guardian for the child. It is the child’s welfare and well being which is the most important aspect in providing custody of that child.

Child Custody Under Hindu Law

The Hindu religion didn’t recognise the concept of custody as it was considered that it is the father who has to look after the welfare of the child and after his death it was the mother who shall be given the custody of the child. But as the time changed the need for a properly codified law regarding the custody of a Hindu child was felt and for this purpose the Hindu Minority and Guardianship Act, 1956 was passed. The custody of a Hindu child is governed by the Guardian and Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956. Jains, Buddhists and the Sikhs are also included under the definition of a Hindu.

• As per the Hindu Minority and Guardianship Act, 1956 the Hindu child below the age of 5 years shall be kept under the custody of the mother as till this age it is only the mother who can give proper emotional, moral as well as physical support to the child.

• The custody of a boy or an unmarried girl below the age of 18 years and above the age of 5 years shall be given to the father of the child as he is considered to be the natural guardian and only after his death the custody shall be given to the mother.

• In case the child is illegitimate then the custody shall be with the mother itself.

• If the parents are not willing to take the custody of the child or if the court thinks that for the welfare of the child it would be better if he is not kept under the guidance of the parents then even a third person may be allotted the custody of a Hindu child. In this case usually, the grandparents be that paternal or maternal will be preferred to get the custody of that Hindu child if they are interested.

• If neither the parents nor any of the close relatives of the child are initiating to take the custody of the child then the court by itself shall find an appropriate person who could take the custody of the child.

Persons Who Cannot Get the Custody of a Hindu Child

There is a list of persons under Hindu Law who, in any case, shall not be given the custody of the child, they are:-

• A person shall not be given the custody of a Hindu child if he has ceased to be a Hindu, that is, he has converted to any other religion and no longer remains a Hindu.

• If a person has completely renounced the world, that is, he is no longer interested in the materialistic world rather he is willing to become a saint in search of emancipation of God then he shall not be given the custody of a Hindu child. For this it is important to prove that the person has in real terms emancipated the world and a mere declaration would not make the person ineligible from his right of taking the custody of the child.

• A person who would not be able to take proper care of the child due to any of his wrong or unhealthy practices shall not be given the custody of a Hindu child.

Child Custody Under Muslim Law

The custody of a Muslim child is governed by the Guardians and Wards Act, 1890. A separate law for the custody of a child is not present as it is for the Hindu child. The custody of a child under the Muslim law is known as “hizanat”, that literally means the care of the infant. Muslim law considers that the child attains majority after he has attained the age of puberty, that is under Muslim law the terms puberty and majority are considered to be the same.

• The custody of a Muslim child is with the mother until he has attained the age of 7 years for a boy and until she has attained the age of majority or puberty in case of a girl.

• The custody of a boy after he has attained the age of 7 years and the girl after she has attained majority or puberty is with the father as under Muslim it is the father who is considered to be the natural guardian of the child.

The other relations apart from the parents who can claim the custody of a child are:

• Nearest paternal grandfather
• Full brother
• Consanguine brother
• Full brother’s son
• Consanguine brother’s son
• Full of the father
• Consanguine of the father
• Father’s full brother’s son
• Maternal grandmother
• Maternal great-grandmother
• Maternal aunt and great aunt
• Full sister
• Consanguine sister
• Uterine sister
• Paternal aunt

Persons Who Cannot Get the Custody of a Muslim Child

• A person shall not be given the custody of a Muslim child if that person is not of a sound mind.

• A person who doesn’t possess a good moral character shall not be given the custody of a Muslim child.

• A person who lives in such a place or in such a manner that would not be appropriate for the welfare of the child or is leading to an immoral life shall not be allowed to keep the child under his/her custody .

• A person who would not be able to take proper care of the child due to any reason shall not be allowed to take the custody of the child.

• A person who has ceased to be a Muslim, that is, he has converted into another religion other than Islam shall not be eligible to get the custody of the child.

• A woman who has married another man who is not within the prohibited degree of relationship with the child shall not be given the custody of that child.

Suggested Reading: Legal Custody of Child Born after Divorce or Separation of Parents in India

Child Custody Under Christian Law

The custody of a Christian child is governed by the provisions of the Indian Divorce Act, 1869 read with the Guardians and Wards Act,1890. Sections 41, 42 and 43 of the act deals with the powers which are conferred to the court regarding the allotment of custody of a Christian or any other child who is not covered under the different personal laws of the country.

As per the provisions of the Act, the court may give directions either during the proceeding of the case or after the decree for divorce has been passed by the court separating the parents. The child shall be given to the person who would serve to be a better guardian for the child and for this even the claim of the parents can be denied if the court feels that both the parents are incapable of giving the child a proper atmosphere to grow both physically as well as mentally.

Child Custody Under Parsi Law

The custody of a Parsi child is dealt with the provisions of the Guardians and Wards Act, 1890. The welfare of the child is paramount, that is, anything can be put to stake to make sure that the welfare of the child is confirmed. No custom or religious ceremony should be considered if the welfare of the child is at stake.

Conclusion

The custody of a child in India depends upon his personal law read with the Guardians and Wards Act, 1890. The most important aspect in allotting the custody of a child is to seek his welfare and for this even if the other rituals or personal law rules are to be set aside it shall be done. Any person appointed by the court may take the custody of that child, preferences are to be given to parents and relatives but it’s the court who shall make the final call regarding his custody.

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