CHILD CUSTODY AFTER DIVORCE

CHILD CUSTODY AFTER DIVORCE

Author:-  TAZYEEN FATIMA, a Student of Sultan ul uloom college of law

INTRODUCTION:

Child custody is one of the equal rights each parent has over their child to live with them, which is known as "child custody." It concerns a parent's right to make decisions on a child's upbringing, education, and health. In India, the child is legally owned by both parents. The Society believe moms should care for children while dads should be out working and supporting their families financially; hence, they would prefer to grant mothers legal powers over children.

TYPES OF CUSTODY:

Following three are the major types of child custody −

• Physical Custody:

Physical custody means the child will live with one parent and have visitations and regular contact with the other parent. The goal is to ensure that the child not only lives in a secure environment but also receives the other parent's love during his formative years.

• Joint Custody:

Joint custody means that the child will live alternatively with both parents for a few days, a week, or even a month. This is advantageous for both parents and the child because it preserves their bond and allows them to participate in their child's early years.

• Legal Custody:

Legal custody implies that the parent who has been given custody makes all of the child's decisions. Most of the time, courts provide legal custody to both parents jointly, but in complicated divorce cases where it seems like the parents will never agree, the court gives legal custody to one parent.

LAW RELATING TO CHILD’S CUSTODY AFTER DIVORCE:

The law governing child custody after divorce is the Guardians and Wards Act, 1890. The Act lays down the guidelines and principles that the court needs to follow while determining the custody of the child. The Act does not specify the exact age at which a child can be given custody but it does state that a child who is below the age of five is to be given to the mother unless there are special circumstances.

• Custody under Hindu Law – has provisions under the Hindu Marriage Act 1955 (section 26), the Special Marriage Act 1954 (section 38) and the Hindu Minority and Guardianship Act 1956.

• Custody under Muslim Law – allows only the mother to seek custody of her child(ren) under the Right of Hizanat.

• Custody under Christian Law – allows for child custody under the Divorce Act 1869 (section 41) only after separation decree is granted.

• Custody under Parsi Law – allows for child custody under the Guardian and Wards Act 1890 and gives high importance to welfare of the child.

LANDMARK CASES ON CHILD CUSTODY:

1. Master Zubeen vs. Principal Judge, Family Court on 07th May, 1993

1. S. Prabhu vs. Rajani R. on 25th January, 2007

2. Ram Murti Chopra vs. Nagesh Tyagi on 25th September, 2008

3. Vikram Vir Vohra vs Shalini Bhalla on 25th March, 2010

CONCLUSION:

Child custody after divorce is a sensitive issue that needs to be dealt with great care and attention. The court has to take into consideration various factors such as the welfare of the child, the wishes of the parents, the age and sex of the child, the financial condition of the parents, and the health of the parents and the child while deciding the issue of custody. The Supreme Court of India has laid down certain principles and guidelines which the court needs to follow while deciding the issue of child custody. The most important factor that the court needs to take into consideration is the welfare of the child & strive to ensure that the child’s best interests are taken care of and that he’s placed in the best possible situation.