"Parenting is the easiest thing in the world to have an opinion about but the hardest thing in the world to do." - Matt Walsh
This article is written by Anushka Kishwar, from CLS GIBS. The article addresses the various laws governing child custody in India.
The origin of the (late Middle-English) term ‘custody’ derived from the Latin term ‘custos’ which refers to ‘guardian’. Later, this term was evolved into the Latin term ‘custodia’.
During the British regime, the law of guardianship was developed by the courts and the word “custody” has been used in a wider sense to include practically all rights of guardianship as well as in a narrow sense to include only “care” and “control”.
Childhood is protected in numerous ways by most countries according to modern laws. A person who has the responsibility to take care of the minor person or his property or both is called a Guardian.
It is the well-established proposition of law that in all matters relating to children, including access and custody, the paramount consideration is the welfare of children. Well-being includes the physical, intellectual, and moral welfare of the minor child.
KINDS OF CHILD CUSTODY
1. PHYSICAL CUSTODY: Here the other parent after the order from the Court given the visitation rights unless if the visit of that parent is harmful to the interest of the child or children, the Court can refuse such visits.
2. LEGAL CUSTODY: This type of custody is different from Physical Custody as the custodian parent is allowed to make long-term decisions for the welfare of the minor child
3. JOINT CUSTODY: Under this type of custody both the parents take turns to take care of the child and the custodian rights are given to both parents.
CHILD CUSTODY LAWS IN INDIA
The laws regarding child custody are mentioned under the Hindu Minority and Guardianship Act 1956, Section 26 of Hindu Marriage Act 1955, and Section 38 of Special Marriage Act 1954, for the welfare and maintenance of such children.
1. HINDU MINORITY AND GUARDIANSHIP ACT, 1956
Under the Hindu Minority and Guardianship Act of 1956, it may be emphasized that in modern law, guardians exist essentially for the protection and care of the child and took look after its welfare.
The mother is the natural guardian of the illegitimate children even if the father is alive. However, she is the natural guardian of her legitimate children only if the father is dead or otherwise is incapable of acting as a guardian. Section 6(a) of the Act lays down that mother is entitled to the custody of the child below five years unless the welfare of the minor is required otherwise.
The mother’s right of guardianship is not lost on her conversion to another religion so long as she's able to provide a congenial, comfortable, and happy home. The Supreme Court has held that under certain substances even when the father is alive mother can act as a natural guardian.
The natural guardian of the minor legitimate children, sons, and daughters in Hindu laws is a father. Section 19 of the Guardians and Ward Act of 1890, lays down that unless the father is found to be unfit, he cannot be deprived of the natural guardianship of his minor children.
The outcome of this provision has been considerably diminished by the judicial decisions and by section 13 of the Hindu Minority and Guardianship Act which lays down that well-being of the minor is of the utmost consideration and the guardianship rights of the father are subordinate to the well-being of the children.
The Hindu Minority and Guardianship Act,1956 does not agree on the principle of joint guardians.
2. HINDU MARRIAGE ACT, 1955
Section 26 of Hindu Marriage Act 1955, the court has been authorized to pass any order or to make any arrangements in respect of custom, maintenance, and education of the children during the pendency of proceedings or after any degree is passed under the act in any case within the 60 days, the dispute between the parents to be disposed of the pending decree from the date of service of notice. In the absence of any such proceedings, only the Guardian Courts can pass such order. The object of the section is to enable the Court to make just and proper provisions for the welfare of minor children.
3. THE SPECIAL MARRIAGE ACT, 1954
Section 38 of the Special Marriage Act 1954 is significantly the same as section 26 of the Hindu Marriage Act. The only difference between these two Acts in the laws related to child custody is that in Hindu Marriage Act, 1955 the parties belong to the Hindu religion whereas, in the case of the Special Marriage Act, 1954 both the parents belong to different religions and have undertaken a court marriage.
The main source of custodian laws are certain verses in the Koran, ahadis, and other authorities on Muslim law and according to these sources of guardianship of a person, it is a mere inference.
Under Muslim laws, the primary to have the custody of children belongs to the mother and as long she is not found guilty of the misconduct or disqualified, she cannot be deprived of her custodian rights that is right care and well-being of the child. This is called the right of hizanat and can be enforced against the father or any other person.
The mother’s right of custody or hizanat is exclusively recognized interest of children and this right is not absolute as she cannot exercise it the way she likes to exercise it. If she is not found suitable to bring up the child, or custody is conducive to the child's physical, moral, and intellectual welfare, she can be deprived of it.
Under the schools of Muslim law, right of the father's hizanat right has been recognized in the following 2 cases:
1. On the completion of the age by the child up to which mother or other females are entitled to its custody.
2. Mother or other females who have the right to custody of minor children, in her absence.
The father cannot be deprived of the right of hizanat of his minor child of seven years if he is not to be unfit. In Muslim law, custody rights terminate at the early age of the child.
PARSI MARRIAGE AND DIVORCE ACT, 1936
Section 49 (custody of children) & section 50 (settlement of wife’s property for benefit of children) under the Parsi Marriage & Divorce Act, 1936. The divorce Act 1869 and the Parsi Marriage and Divorce Act 1936 reflect the then prevailing statutes of English law.
Under this Act, the Court may from time to time grant the interim orders as it may deem and proper concerning the custody, maintenance, and training of children under 6 years of age (till 18 years) in the final decree upon application. And if the Petition has been made to the Tribunal that the wife is entitled to any property either in possession or reversion, the Court may order a settlement of that right which it finds it fair to make of any part of that property not exceeding one-half of it for the benefit of children.
CHRISTIAN LAWS (THE DIVORCE ACT, 1869)
The Divorce Act, 1869deals with the subject in Part XI, under the title, “Custody of Children,” in Sections 41 to 44. The proliferation of the subject in four sections does not serve any useful purpose except that it reflects the then legislative tendency. interior matters related to custody, maintenance, etc are dealt with in section 41 (judicial separation proceedings) and section 43 (nullity and divorce proceedings), while matters relating to permanent custody, etc. are dealt with in Section 42 (judicial separation) and section 44 (nullity and divorce proceedings), otherwise the provision it's substantially the same as that of Parsi Marriage and Divorce Act.
The divorce act does not deal with the martyrs relating to custody in the restitution of conjugal rights litigation.
THE PROHIBITION OF CHILD MARRIAGE ACT, 2006
The orders passed under section 5 of the Prohibition of Child Marriage Act, 2006 which is related to the custody and maintenance of children of child marriage, the District Court shall be given a paramount consideration based on welfare and best interests of the children born of the child marriage for their custody. The Court may give appropriate direction to the parties for providing access and maintenance to the children in their best interest.
THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
Section 21 of the Domestic Violence Act, 2005 deals with the custody orders. The application for a protection order or any other relief under this Act, the Magistrate grants temporary custody of any child or children to the aggrieved person or the person making the application on her behalf and specify, if necessary, the arrangements for the visit of such child or children by the respondent, provided that if in the opinion of the Magistrate that any visit of the respondent may be harmful to the interest of the child or children, the Magistrate shall refuse to allow such visits.
The objective behind making such provisions is that the interest of children is not adversely affected or neglected on account of the proceedings between their parents. Whenever the court proceeds to pass such an order it would consider the wishes of the children as far as possible.
The Special Marriage Act, 1954
The Hindu Marriage Act, 1955
The Divorce Act, 1869
The Parsi Marriage and Divorce Act, 1936
The Prohibition of the Child Marriage Act, 2006
The Protection of Women from Domestic Violence Act, 2005
Family Law by Dr. Paras Diwan
Modern Hindu Law by Dr. U.P.D. Kesari
 Arumugo vs. Viraraghava, ILR (1901) 24 Mad 255, Navneet vs. Purshotam, ILR (1926) Bom 268  Gita Hariharan vs. Reserve Bank of India, JT 1999 (1) SC 524; Vandana Shiva vs Jayanta Bandhophaya, AIR 1999 SC 1149  AIR 1960 Punj. 326.