Divorce laws can be extremely difficult for most couples and spouses to make sense of. However, it is essential for them to understand the basics when it comes to the many terms and conditions of divorce in India.
The child custody laws in India are very straightforward, which in turn makes it difficult for parents to comprehend, plan, and prepare for a secure future for their child(ren) once they are divorced.
For most parents, seeking the custodial rights of their child is a matter of fighting off the other parent, who much like them, wants sole custody.
The most important factor that couples should take into consideration is to ensure that whatever the decision my be, the welcome of the child in question is adequately looked after.
Custodial rights for a divorce in India are divided into two related components – physical and legal. Earlier, most judges would grant the custody to the mother, but now a growing number of cases have seen the right being shared by both parents, which is legally referred to as shared legal responsibility.
As per the judicial system that is adhered to in India, a parent, who has legal guardianship, is responsible for the welfare of the child(ren) in question.
Many at times, the court allots both spouses joint decision making responsibility for making decisions like education, health, religion, and welfare.
While dealing with such a case, the presiding judge may also ask for the opinion of the minor, whose thoughts and comments may be taken into consideration. This is dependent on the two factors – the child’s age, and the nature of his/her relationship with the parents.
The times in India have changed since the time when mothers were granted custody without second thought. The judges at the time, would also grant healthy alimony and child support to insure that both, mother and child, are looked after for.
Since times are changing, and a growing number of women now have full-time jobs, the legal system has made appropriate adjustments, where the kid’s welfare plays a major role in the court’s final decision pertaining to custodial rights.
Here is a basic summary of the different child custody laws in India, as categorized by religious beliefs, by the Indian penal code:
- Hindu law
The Hindu Minority and Guardianship Act 1956, along with the Guardians and Wards Act 1890, lays down the rules of guardianship in India. It states that while the natural guardian of a minor is the father, the custodial responsibility of infants should be awarded to the mother.
Despite these notes, such cases are generally inclined in the favor of the mother, since Indian society sees the relationship and bond that mother and child share to be more essential, and thereby nurturing.
- Muslim law
Under the Muslims laws for divorce in India, the foremost right of custody belongs to the mother, and is known as the “right of hizanat“. In case the mother is disqualified, the father can be given custody as dictated by law.
This is however a time-bound right. After the child has come of age, the father can contest, and gain, legal guardianship.
- Parsee Law
Laws pertaining to the custody of children is provided in the Parsi Marriage and Divorce Act, 1936 under section 49.
- Christian law
There are no specific laws laid down for the Indian Christian community, which is why the 1956 Act is applied in this case.
Since a divorce can be especially traumatic for children, parents should take special care to keep them away from the arguments and fallout, that most divorces tend to come with.
Uncontested divorces are the best option for parents who don’t want to get involved in lengthy proceedings, which in some cases has been known to take years together.
The subject of child custody in India is difficult to deal with, primarily since the Indian society still shuns and looks down upon divorced couples. At times, innocent children too have to bear the brunt that such intolerance brings with itself.