CHILD CUSTODY: ‘RIGHT OF CHILD’ NOT ‘RIGHT OF PARENT’ DISHA GUPTA BASICS OF LAW Tue, Apr 02, 2019, at ,12:39 PM If a marriage breaks down and ends up in separation of a couple, the person who suffers the most is the child or children born out of the marriage. The Indian Law, while keeping in mind the parents’ right to the custody of a child, holds the welfare of the child as the most important factor of consideration when deciding upon who gets the custody of a minor child. It is very good to know that now 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. After the dissolution of a marriage, custody of a child can be given as: 1. Physical Custody- Physical custody when awarded to a parent implies that the minor will be under the guardianship of that parent with visitation and periodical interaction with the other parent. The aim behind such a custody award is that the child lives in a safe and fulfilling environment but is also not deprived of the affection of the other parent during his formative years. 2. Joint Custody- Joint custody of a child does not mean that the parents will both live together because of the child even though that what Indian courts believe is best for the welfare if a minor. It simply means that both the parents will take turns keeping the child in their custody. The rotation of a child between the parents’ custody may vary from certain days or a week or even to a month. This not only benefits the child as the 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. 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. Custody laws pertaining to different religions: 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. · Under Hindu Law, usually the mother gets the custody of the minor under 5 years. Father gets custody of older boys and mothers of older girls, but only on the basis of child’s interests. The opinion of the child of above 9 years is considered and if the mother is proven to ill-treat or neglect the child, she is not given the custody. · Under 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. · 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. If the child is not a citizen of India but has been brought by either parent who is a citizen of India- While dealing with a case of custody of a child removed by a parent from another country to India in contravention of the orders of the court where the parties had set up their matrimonial home, the Hon'ble Supreme Court in the case of ‘Prateek Gupta vs. Shilpi Gupta’ has held that a child can seek refuge under the parens patriae (latin for ‘parent of the nation’) jurisdiction of the Courts in India. What happens if the mother has a weak financial status and the father is remarried and has kids? The Mother of a minor cannot be discarded as the guardian just because she earns less than the father. 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 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. Father gets custody while the mother gets visitation- In Mridnagara J. Hiralal Suchak vs. Neena M. Suchak. The Rajasthan High Court held that- · Sentimental consideration should not prevail over obvious welfare of the minor in determining the custody. · If the minor is old enough to form an intelligent preference, court may consider his choice. · Court has to be guided by one major factor and that is the welfare of the child. · Apart from education, financial status should also be considered in determining the custody. Thus, in this case the father was given the custody of the child.