In India, both parents have legal rights to the child. This means that the mother has the right to raise and care for the child and is entitled to visitations with the child. The father has equal rights to raise and care for his children but does not have the right to visitation.
How Child Custody Works in India?
The Indian courts are reluctant to make decisions about child custody and the welfare of children. Child custody is a state-based issue in India, so each state has its own set of rules and regulations. In India, many people prefer joint custody to sole custody.
Who Gets Custody of the Children?
The court decides which parent will have custody of the children. It is important to note that the court only considers the child’s best interests in making this decision. There are certain circumstances where it would be preferable for one parent to have custody over the other.
Types of Child Custody in India
Physical Custody:
If a parent is awarded physical custody, it means that the child will be under the guardianship of that parent, with the other parent being allowed to visit the child periodically.
Joint Custody in India:
Joint custody is when parents share the decision-making rights for their children with one another. This can be a viable option if you and your partner have different interests or are unsure if you want to raise your child in India or send them back home to your country of origin.
Special Guardianship:
Special guardianship refers to when a guardian or other person has legal custody over a child without being the biological parent. This type of custody is only possible if both parents agree to it. Legal custody gives power over the rights and responsibilities for raising or caring for the child in question.
Physical custody dictates where the child lives and how much time they spend with each parent. However, if they stop providing care, their right to guardianship terminates immediately.
Guardianship of Minor Children:
The guardianship of a minor child is the most common type of custody that India recognises. This type of custody is when one parent holds the title to their child’s care, maintenance, and education. The other parent has visitation rights, but they are not in charge of day-to-day care and education.
Partial Custody:
If you are a parent in India, partial custody is probably something that you have heard of. Partial custody is when one parent cares for and controls a child without the other parent having any involvement. This type of custody is only allowed for children under the age of 18.
Determination of Kind of Custody to be Granted:
Until a court pronounces a final order based on the above-stipulated conditions, the parent who has physical custody as well as legal custody of the child ends up with the child. All other forms of custody or any other arrangements will be made clear by the court, and both parents will be informed of the clarification.
Custody Rights of a Child and Who Can Claim It:
After the divorce or judicial separation, either the mother or the father can claim child custody. In situations where both parents are deemed unfit for custody, or both of the parents are deceased, the grandparents from the mother’s side, the father’s side, or another relative of the separated family can claim custody rights.
Laws Governing Child Custody in India
Due to people from many different communities, India has different laws to deal with the issues that arise in society. Following are some of the custody rights:
Hindu law’s custody rights:
The Hindu Minority and Guardianship Act, 1956, Hindu Marriage Act, 1955, and Special Marriage Act, 1954 regulate the transfer of custodial rights after a separation:
Section 26 of the Hindu Marriage Act provides for a child’s education and maintenance only if both parents are Hindus. The orders can be issued at any time and override the pending decree within a period of 60 days from the date of service of the notice.
As per Section 38 of the Special Marriage Act, 1954, if both parents belong to different religions or have entered a court marriage, this Act validates the right to custody of the child. According to this Act, the court can pass orders, judgments, amendments, etc., at any point of time about child support and dispose of the pending decree within 60 days of the date of service.
As per Hindu Minority and Guardianship Act 1956, the third-party custodial rights are not considered in the provisions. The provisions of this Act pertain only to the biological parents and only if they are Hindu.
Custody of Child under Muslim law
In Muslim Law, the natural custody of a child rests with the mother until the child reaches the age of seven, after which the father becomes the natural guardian. As the age of puberty coincides with the age of being a major, the age limit is set at seven.
Custody of Child under Christian law
A child’s custody rights are governed by Section 41 of the Divorce Act, of 1869. As the parents must prove they are capable of rearing the child, the child’s welfare is vital. If the court is not satisfied with the parents’ abilities, it may deny custody.
Custody under Parsee law
The Guardians and Wards Act, 1890, governs custody rights. Multiple legal provisions are included in the Act to ensure the welfare of children.
Can a Step Mom Get Custody?
In India, a stepmother does not directly get the custody of the child in case of separation or death of the biological parents. However, if certain conditions are met, she becomes eligible for the same. If the child is old enough, his wishes also play a vital role to determine if the step mom gets custody. Since this is a complicated matter, it is important to learn how to get legal custody of a stepchild in India, in this regard.
Legal Rights for Unmarried Mothers
In India, the legal rights for unmarried mothers are same as those of married mothers. She has sole custody rights and all rules applicable to married mothers are applicable to her as well. No discrimination is made in this regard.
India has a strong tradition of family bonds and child care. In Indian society, children are considered blessings from the mother and father. It doesn’t matter what perspective you take on the law. A child’s future shouldn’t be put at risk. In case of separation, joint custody in india is the usual norm.
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