What are the laws governing child custody in India?

After a marriage breaks down and results in separation of a married couple, the party who suffers the most is the child who is born out of that marriage. While keeping in mind the parents’ right to the custody of a child, Indian law holds the welfare of the child as the most vital factor of consideration when deciding upon who gets the custody of a child who is minor.

Factors That Constitute “Welfare” Of A Child:

The welfare of the child, broadly, includes the following factors:

1. Safe-keeping of the child.

2. Ethical upbringing of the child.

3. Good education to be imparted.

4. Economic well-being of the guardian.

What happens to a Minor Child after a Divorce?

The mother and father both have an equal right to the custody of a child. But who gets the custody of the child is a question that the court decides upon. While the statutes are contradictory when we talk about the personal laws as opposed to secular enactment in the form of The Guardian and Wards Act, 1890, the court of adequate jurisdiction struggles to strike a equilibrium between the two, all the while paramount importance being the welfare of the child. However, only because the custody of a minor has been given to a single parent, it does not mean that the other parent cannot see or meet the child. The courts in India are very particular to ensure that a child gets the love and support of both the parents. The other parent gets right like visitation rights with conditions.

Types Of Child Custody Arrangements In India:

Primarily, a court of competent jurisdiction in India may order the custody of a child in this manner:

1. Physical Custody: When Physical custody is awarded to a parent, it indicates that the minor will be under the guardianship of that parent where visitation and periodical interaction will be allowed. The motive behind such a custody award is that the child can live in a harmless and pleasing environment but is also not deprived of the love and affection of the other parent during his formation years.

2. Joint Custody: Joint custody doesn’t mean that both parents will live together. It merely means that both the parents will take turns in keeping the child with them. The turning of a child between the parents’ custody may depend on certain days or a week or even to a month. This not only welfare the child as the love and affection of both the parents is not lost and the parents also get to be a part of their child’s life in those young years.

3. Legal Custody: Legal custody of a child is different from physical custody in many ways. The fundamental difference between the two is that legal custody does not essentially entail having the child with you or being with your child at all times. Legal custody of a child mainly means that the parent granted the legal custody takes all the decisions for the child. From his/her studies to his medication, all will be decided by that person. In most instances, courts give legal custody to both the parents together but if the divorce is muddled and the parents are, apparently, never going to agree with each other, the court grants the legal custody of the child to one parent.

Who Can Claim Custody Of A Child?

The custody of a child can be primarily claimed by any of the parents. In case any of them are deceased or not in the picture because of operation of any other law, the maternal and paternal grandparents, of either of the parents strictly out of compassion towards the child, can get the custody of the child. The Court can also appoint a third party to be the guardian of the child.

Who will get the custody if the mother is not financially strong and the father has remarried and has kids?

The Mother of a minor cannot be ignored as the guardian just because she is earning less. The father has to provide for the child’s maintenance in such a case as it is a well-established principle of law that a step-mother has the primary obligation of affection towards her own children and the father would be at work all day, and hence, the mother would be the better guardian for the welfare of the minor child. 

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