Child custody law in india

Child custody law in india

Child custody is a term used in family law court to define legal guardianship of a child under the age of 18. During divorce or marriage annulment proceeding, the issue of child custody ofter becomes a matter for the court to determine. In most cases both parents continue to share legal child custody but one parent gains physical child custody.

Under Indian law, maximum importance is given to the best interests of the child and so either parent does not have a clear primacy to be granted the custody of the child. After the dissolution of a marriage, custody of a child can be given as:

  • 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.

Child Custody Under Hindu Law

Under the Hindu Minority and Guardian ship act, the custody of all children below the age of 5 years is given to the mother. The custody of boys and unmarried daughters is given to the father. Custody of illegitimate children is given to the mother first and then the father while the guardianship of a married girl is given to her husband. The Hindu Minority and Guardianship Act, 1956 exists in harmony with the Guardians and Wards Act, 1890.


Child Custody under Muslim Law

Under Muslim personal law, the right to a child’s custody is given solely to a mother unless she is seen as an unfit guardian. This is called the right of Hizanat and can be enforced against any person including the father.

One thing must be kept in mind is that the mother’s right of child custody is not absolute and exists only if such right is beneficial and in the interest of her children. Thus, the welfare of the children is at the forefront of Muslim law.

Child Custody under Christian Law

The Christian laws do not have any special mention about child custody rights. Hence the Indian Divorce Act 1869 becomes applicable for all matters pertaining to Christian children and their guardianship. As per Section 41 of this said Act, the courts have the right to pass orders as to the custody, education and maintenance of Christian children.

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