Hi! My name is Pallavi Pratap and welcome to Law Simplified, from Motor Mouth Podcasts. I am here to simplify law for you so that you can apply the same in your day to day life. It will give you an idea about the basic rights and how law can come to your rescue in everyday life. In this episode, I have discussed the custody of child under various personal laws in India.

I am often reminded of a quote by Oscar Wilde, ‘Children begin by loving their parents; after a time they judge them; rarely, if ever, do they forgive them.’ Perhaps pages can be filled and novels be written on the hardship that a child endures in the custody battle that causes him/her to grow up and learn to forgive his/her parent. Are we to believe that to live half a week with one parent and the remaining half with the other, to be torn between two people a child loves the most and to listen to the constant fighting and make-believe stories of how the other parent is responsible for all the things that have gone wrong, is the new normal? As a lawyer, I have seen one too many cases where custody battles have gone from bad to worse. 

How often do we see the tussle between parents fighting over their own child, belittling the other spouse in the process, forgetting that they are responsible for a beautiful future to be given to their child? Is it then possible to conceive the very idea that Courts have to intervene to bring some form of sanity in these relationships, to provide the child, a life, which bears some form of normalcy? 

In today’s day and age where marriages survive less than a decade and there is no happily ever after for many, is it prudent to bring a life into this world only for it to be tossed from one place to another? More so in cases where International jurisdictions are involved.

Under Indian law, maximum importance is given to the best interests of the child and so either parent does not have a clear primacy which is to be granted in the custody of the child.

After the dissolution of a marriage, custody of a child can be given in the following four manner:

1. Physical Custody – where the child is handed over to the custodial parent for living and the other parent is allowed to visit, meet and interact with the child at regular intervals.
2. Joint Physical Custody:A new concept that has evolved while negotiating divorce settlements. Both parents will have legal custody, but one will have the physical custody (child resides with him or her) and will be the child’s primary caretaker.
3. Sole Custody: One parent has been proven to be an abusive and unfit parent and the other parent is granted custody.
4. Third Party Custody:Neither of the biological parents are given custody of the child. Instead, the child custody is granted to a third person by the court.

The Guardians and Wards Act, 1890 is the universal law pertaining to issues involving child custody and guardianship in India, regardless of the child’s religion. However, under secular principles, India also sanctions laws pertaining to different religions.

• Under secular law as well as Hindu law, The mother usually gets custody of the minor child, under the age of five.
• Fathers get custody of older boys and mothers of older girls, but it is not a strict rule and is primarily decided based on the child’s interests.
• The choice of a child above the age of nine is considered.
• A mother who is proven to neglect or ill-treat the child is not given custody.

Custody under Muslim Law

As per the Muslim Law, only the mother holds the ultimate right to seek her child/children’s custody under the Right of Hizanat as long as she is not convicted or found guilty of any misconduct. The father’s right of Hizanat is applicable only in the absence of an able mother.

Custody under Christian Law

If divorce is inevitable, acrimonious battles cannot be the option to settle issues of child custody and access. Custody of a child only implies to whom the child will physically reside with. Both parents continue to be natural guardians.

The thinking has shifted from custody and access being the ‘right of a parent’ to being the ‘right of a child’. The principle on which custody is decided is the ‘best interests of the child’. Therefore, the parent who can take better care of the child’s emotional, educational, social and medical needs is favoured.

The earning capacity of the parent does not determine custody, but the capacity to provide a safe and secure environment does. Even a mother who is a housewife can gain custody of the child and the father will be asked to provide child support.

 The mother is the preferred custodial parent when the child is less than five years old. The opinion of a child who is over nine years old will be considered.

The non-custodial parent can get different types of access to the child based on circumstances and convenience. For example, court could grant weekly, fortnightly, daily or monthly visitation rights. It can be day or overnight access. It could also be free access with no fixed schedule, but as per the parents’ and the child’s convenience.

The parents can agree to a one-time amount or a staggered payment at different stages of the child’s educational life or a monthly payment with incremental increase. The child support should cover the child’s educational and nominal lifestyle expenses.

The court is parens patriae or the ultimate guardian of the child. So the child’s property is protected by law, and terms of custody, visitation and child support can be altered in changed circumstances in the interest of the child.

Thank you for listening to me today. Do write in to me with your feedback or queries and I will be very happy to reply to them. Until next episode, here is Pallavi signing off. Take Care.