Child Custody Laws | Child Custody Laws in India

Child Custody Laws in India:

In the divorce of the parents of a child, the most important issue arises is the custody of the child. There are many different child custody laws in India dealing with different religions. In this article, you will be enlighted about the different child custody laws in India as per the Indian Judicial System to the custody of children of different religions. The blog also highlights the issue of discrimination faced by women in case of custody rights.What this article will cover?Custody of Child under Hindu LawCustody of Child under Muslim Law (‘Hizanat’)Custody of Child under Christian LawLet’s discuss them one by one…Custody of Child under Hindu Law:In Hindu law, many other religions also come such as Buddhism, Jainism, Sikhs. The child custody law is according to the Hindu Minority and Guardianship Act, 1956 along with the Guardians and Wards Act, 1890. The rules applicable to child custody are:If the child’s age is less than 5 years it should be given to the mother, considering that the child of such a sensitive age requires affection and love which only a mother can give.As per Hindu law, the general practice is that the father is a natural guardian of the child and has the right of custody. This rule was codified in Section 6 of Hindu Minority and Guardianship Act, and Section 19(b) of the Guardians and Wards Act. The rules are clearly discriminatory as they consider father as natural guardian.In 1989, the law commission understood this discrimination and proposed new laws in a manner which doesn’t oppose the right to equality. Section 19(b) of the Guardians and Wards Act went into an amendment to bring the custody rights of both father and mother at equality.Custody of Child under Muslim Law:In the Muslim community, the child custody laws in India are in accordance with the personal law and Guardians and Wards Acts, 1890; and in case of conflict, the latter prevails. The rules applicable for the custody of a Muslim child are:Under the Shia law, a mother is having the right of custody of her son until he attains the age of two years and daughter until she attains the age of seven years.Under the Hanafi law, the child custody is given to the mother, until the boy attains the age of 7 years or the girl achieves the age of her puberty.The mother’s right of custody continues even if she is divorced but in case of remarriage after divorce process in India, the custody belongs to the father.The consent of the child has also considered if the child is able to express his/her interests. Also, it is taken under consideration that the child hasn’t come under any influence, if he is, then the consent will be disregarded.If the boy is above 7 years and the girl has attained her puberty then the custody will be given to the father as like in Hindu law, the father is considered as the natural guardian.

The above-mentioned laws can be disregard in the case of certain exceptions at which people are not given custody irrespective of their genders. The exceptions are like:-The bad moral character of the personA person who has ceased to be a Muslim and thereby converted to any other religionThe person is having an unstable mindA person is not able to provide proper care of the childThe woman who has married within prohibited relationshipsThe last rule clearly shows that the law is still not equal for men and women.Custody of Child under Christian Law:For Christian religion, the child custody laws in India are in accordance with the Indian Divorce Act, 1869, and Guardians and Wards Act, 1890.  This Act provides rule when the religion doesn’t have its personal laws. The court will rule its decision under Section 41-43 of the Act.Conclusion:The Indian Judicial System foremost concern during the child custody case is the welfare of the child. The child custody laws in India are under the uniform practice keeping the best interest in mind. Also, the Law Commission recommendations and petitions of people are thriving for equality among men and women regarding the custody of the child.If you ever require consultation or help regarding the custody of the child, you can consult E-legal advisors.


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Written by ajay elegal

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