Overview

Custody issues arise when parents separate.Child custody is a legal term regarding guardianship which is used to describe the legal and practical relationship between a parent / guardian and a child in that person's care. Child custody means legal custody of a child, which makes decisions about the child, and physical custody. Normally Married parents have joint legal and physical custody of their children. Decisions about child custody typically arise while proceedings involving divorce, annulment, separation or adoption. In most jurisdictions child custody is determined according to children's interests but doesn't compromise with the future of children.

What Is Child Custody in India?

In India, mother and father both have legal rights to the child. It means that the mother has the right to raise and care for the child as well as father..Both are also entitled to visitations with the child. The courts do not decide on custody based on which parent is more suitable or better suited to care for the child because in growing age both parents are important for the child. In this case, in maximum cases , it would be a tie between both parents. This system of custody depends- that society views women as the weaker gender on the other side. They would rather give mothers legal rights over children because they believe mothers can do best caring for children while fathers should be out working and providing financially for their children.

How Child Custody Works in India ?

It's very difficult for Indian courts to make decisions about child custody with a view to the welfare of children. Child custody is a state-based concern in India, so each state itself sets rules and regulations. In India, many people prefer joint custody rather than sole custody.If a parent does not have to share custody of their children, it can either be shared or not. If the parents do not agree on a joint or non-joint guardianship, the court will decide who will have full custody of their child. In most cases, the court will ask both parents what they want if they do not agree.

Important factors consider by court while taking decision

• Ethical upbringing of the child

• Child get good education

• Safety of child

• Economic and financial support to child

Types of Child Custody in India

1. Types of Child Custody in India It means that the child will be under the guardianship of that parent, and other parent only have visitation rights periodically. This is the most common method of ensuring that the child receives all the family benefits and love and has the best upbringing as possible. The environment around the child must be enriching and fulfilling while trying not to deprive the child of his parents’ affection during their growing years.

2. Special Guardianship: In India different types of custody is recognised ,that is special guardianship. Special guardianship refers to when a guardian or other person has legal custody over a child ,it doesn't matter that he /she will be the biological parent or not . This type of custody is only possible if both parents agree on the same. Here is an important difference between legal and physical custody, which you should be familiar with. Legal custody gives power, rights and responsibilities for raising or caring for the child. In contrast, physical custody means where the child lives either of the parents or both and how much time the child spends with each parent.
   Suppose a court grants legal guardianship to a father. In that case, the father will have full responsibility over all aspects of the child’s life as long as he is willing to provide that amount of care and support. However, if he stops providing care, their right to guardianship terminates immediately.

3. Joint Custody/Partial Custody/ physical custody: One common type of joint custody is sharing both physical and legal custody.here, the child will spend some portion of time living with each parent (joint custody), and the parents will cooperatively make decisions about the child's upbringing and welfare, similar to when they were married (legal custody).It can also be called as physical custody Example: Mother and Father arrange a schedule where Child lives with each parent for one month at a time (physical custody), and they agree that they will decide together on all major issues related to Child's welfare and upbringing (legal custody).

4. Guardianship of Minor Children : According to the Hindu law guardianship of a minor child is the Hindu Minority and Guardianship Act, 1956. According to Section 4(a) of the Act, a minor is a person who is below the age of eighteen. Acc. to Section 4(b) of the Act, a guardian is a person who is completely responsible for the care of the child and as well as the child’s property or both. The section further states the different types of guardians:

   • Natural guardian
   • Testamentary guardian
   • Guardian appointed by the court

Documents required

Note:

• Identity proof of applicant can be government-issued identity card.
• Address proof of legal heir can be any valid identity proof or telephone/mobile bill, gas bill, bank passbook with the name and address of the legal heir.
• Date of birth proof of legal heir can be a birth certificate, school transfer/leaving certificate or any government-issued identity card.

Procedure to Obtain Child Custody Under Indian Law :-

1. child custody case (petition) require to filling by any spouse who is seeking child custody. Keep in mind - child custody petition usually takes longer because of civil nature, thus its ideal to attach an application for interim or temporary custody as well as visitation right by the non-custodial parent.

   VISITATION RIGHTS : it implies regular meeting of the minor child with the non-custodial parent. Generally duration of visitation rights allowed from 1-4 meetings per month.

   INTERIM CUSTODY: The interim custody allowed to the non - custodial parent during the pendency of the suit.

   Section 8 of the Guardians and Wards Act 1890 : It enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the Court having jurisdiction to entertain application for guardianship.

2. Procedure under Hindu Marriage Act, 1955

   Under Hindu Marriage Act - Section 26 courts are authorized to pass interim orders in any proceeding under the Act with respect to custody, maintenance and education of minor children, in consonance with their wishes. The Section also authorizes courts to revoke, suspend or vary such interim orders passed previously.

3. Procedure under Article 32 and 226 of the Constitution of India

   In some extra – ordinary situations a writ petition under Article 32 of the Constitution of India can be filed in front of the Supreme Court of India or a submit petition under Article 226 of the Constitution of India.. Such petition is filed by using the Writ of Habeas corpus for obtaining Child Custody.. It is not a full-fledged child custody petition but has limited jurisdiction. However, the Supreme Court of India and High Courts of every state of India have authority with extraordinary powers/jurisdiction to determine the issue..

FORMAT OF PETITION FOR CUSTODY:

Petitioner’s full name name (Who seeks custody) Petitioner

Vs.

Person (Who Has Custody at Present) Responden

1. We got married on XYZ date in ABC place etc. Mention details like marriage certificate if marriage is registered, else some proof like wedding card, wedding photos etc. Copies of these will be attached with a petition.
2. A child was born out of wedlock on so and so date. Child’s birth certificate is in exhibit N.
3. Currently the child resides with the respondent at so and so place.
4. I submit that I work as xyz at so and so place/company/own business etc.
5. Child is being deprived of the father's love, presence, and company due to the respondent living separately and having taken the child with her.
6. I can take good care of my child. Now here are several points as per your sole custody or shared custody goal, like how you can take care of the child, and the child is attached to you, and how you can contribute to the child's growth and development. I would suggest desist from bragging about your financial earning or status, since that only reduces one from father to an ATM. This is a major trap which many men fall for, thinking that their earning and income will be a major factor for the court to decide child custody in their favor. What will instead happen is that the court will say that mother is required for the small child (most of cases we see are in early stages of marriage), father is earning well, let him pay maintenance to wife for both wife and child, and award you twice visitation a month to show love and affection to child. So from hoping-for-full-custody-dad-thereby-teaching-wife-lesson-too, one becomes a visiting dad in a child's life in short order. And the much bragged about high earnings of the father can only be useful now to buy expensive gifts for the kid, which have more of excitement than growth value for the kid.
7. Depending on the child's age and requirements, you can suggest taking responsibility for the child's school fees, educational expenses, which is a very good strategy otherwise too, since that gives you some or full control over which school the child goes to. The reason for this is that sometimes mothers can change their child's school just to keep the kid further away from father, or for various reasons.
8. Offer to open a bank account in a minor child’s name where you can be guardian, and you can suggest the respondent can be made guardian too, and that account will be used only for the purpose for spending on the child. This will end the possibility of maintenance given to the wife in the name of the child being used for other purposes. Later, you can ask for bank statement of this account and if there are lot of unexplained withdrawals from the account, which the respondent mother can’t explain how were being spent on child’s welfare, then you can use that point to gain better child custody or full custody in case of gross misuse of the funds too. The deposits into that account can be made in proportion to the incomes of the husband and wife.

Conclusion

Now it's 2022, courts started to consider custody disputes in view of child welfare and giving more weightage to the rights of the child rather than the rights of the parent. Courts observe that ,A child is the future of the nation and therefore it is very important that the child should be grown in a good environment where he is treated and nurtured properly. Once the divorce is granted, the court becomes solely responsible for the children, and any decision made thereafter is taken keeping in mind the best interest of the child.The main aspect of appointing guardians should be that there should be the welfare of the child.
So if you need clarity on the legal aspects related to child custody in India then, let Legal Tax help you! A professinal lawyers far you just one click of a button.
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Some Reference links

• https://www.indianalegalservices.org/node/51/general-information-about-guardianship-child
• https://www.indianalegalservices.org/node/51/general-information-about-guardianship-child
• http://legislative.gov.in/sites/default/files/A1956-32_0.pdf

If a Hindu male passes away without a Will and has no class 1 or class 2 heirs or agnates, then the succession would be gone to cognates. Cognates are related to the intestate by blood or adoption but not wholly, through male. Thus mother’s brother’s son and brother’s daughter's son are cognates, eligible for heirship.

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