The Law relating to Custody of children
The Law relating to Custody of children
Custody of children is an incidental and ancillary issue which arise when there is a matrimonial dispute between the spouses. It is often seen that the children are worst affected when there is a matrimonial dispute between husband and wife and the court have been dealing such issues in a very diligent and cordial atmosphere as a guardian of these children. There are provisions in all the matrimonial statutes to make interim orders with regard to the custody, maintenance, education and well being of children while the matrimonial proceedings are pending in the courts and such orders may also be passed after these proceedings.
The provisions of section 38 of Special Marriage Act, Section 26 of Hindu Marriage Act, Section 49 of Parsi Marriage & Divorce Act, Section 41 to 44 of Divorce Act, Section 6 (a) Hindu Minority and Guardianship Act, 1956 deal with the custody of children as the case may be.
The main consideration while deciding the custody of children, the paramount consideration is the welfare of the child. There are specific statutes which deal specifically in the custody and guardianship of children under the provision of Guardianship and Wards Act, 1890 which is a secular law and people of any faith, religion, community, caste, clan and area may apply for the custody and guardianship of their children.
The custody of legitimate, illegitimate children born out of the marriage, relationship, Live-in relationship.
Welfare of the child- paramount consideration
Hon’ble Supreme Court and various High Court and also the family courts have given various judgment on this issues and have framed various guidelines and rendered judgments wherein, it has been held that irrespective of the legal situations and provisions provided by various statutes for the children of different faiths and religions, the paramount consideration is always the welfare of the child and it cannot be compromised at any cost. In a landmark judgment of the Hon'ble Supreme Court it has been held that “the children are not mere playing things of their parents. Absolute right of parents over the destines and lives of their children has, in the modern changed conditions, yielded to the consideration of their welfare as human beings.”
Custody to persons other than parents
In this regard the courts have considered the welfare of the children and in some situations, the courts have given the custody of children to grand-parents even when one of the parents are alive. The courts also take into account the gender of the children and give the custody to other female relative if the father is present and mother is not present. The courts have held that where the question of custody of a child is involved, the primary consideration which weighs with the court is the welfare of the child and the custody is decided under the provisions of Guardianship and Wards Act.
Change in custody
It has also been a significant factor to understand in the cases of custody and guardianship of children that the custody and guardianship of the children is not permanent with the person to whom, it has been given and in the change of circumstances, it could also be molded by the courts. It is also necessary to understand that the good financial custody is not always a criteria for the grant of custody of the children but it also plays a vital role when the total welfare is to be decided.
Remarriage of parent
Although remarriage of a parent with whom the custody is, prima facie is not a ground which gives rise to lose the claim of the parent for custody. In the case of mother’s remarriage her claim to child’s custody is not weakened and at the same time if a father remarries and the court is satisfied that the welfare of the child rest with him, the court has power to handover the custody to the father instead of mother. It has also been reported in cases that if a mother who remarries a man belonging to a different religion, is no bar from claiming custody of a child. There are other essential aspect which are to be considered by the court while deciding the custody of the child in the event of remarriage of the parent such as the past upbringing and the future prospects of the child.
Wish of the child
All the courts in India have also been careful in considering the age of the child while granting custody. If the child is of tender age, the court usually give custody to mother but it may vary cases to case since the paramount consideration while deciding the custody if the welfare of child. If the child is of the age of expressing his opinion and child is of good understanding, the court always consider the wish of the child. The courts also look into the tutoring aspect of the matter also while giving the custody so that the poisonous environment may be shaded away. Again the wish of the child is coupled with the fact of welfare of the child. The courts have always been the prime custodian of the child of troubled marriages and while giving the custody of a child of mature age where he is prima facie in a situation to understand the difference between good and bad.
Visitation Rights
While giving the custody of the child, the court also take into account the fact that child shall not be deprived of the love and affection of the other parent or relatives. While giving custody, the courts have been passing order of providing visitation rights to the other parent. Such arrangements are made by the court so that the child as well as non-custodial parent needs each other’s emotional love. The courts have ample power and discretion to amend, revoke and mold the visitation arrangement if the need arises. Since it is a very sensitive point, no doubt the welfare of the child is paramount consideration, emotional aspects are also to be looked into.