Child Custody in India

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In recent times many couples face many distress and incompatibilities due to

which they fail to understand each other’s needs and desires. Due to various factors

the matrimonial conflicts have increased to such an extent, that it results to

separation. One of the important questions that arise at the time of divorce is who

gets the Custody of the Child.

In the English Law, the word “custody” has been used in a wider sense so as to

include practically all the rights of guardianship as well as in a narrow sense as to

include only “care and control”. The Indian Courts use the term “custody” in the

narrow sense and when they commit custody to one parent, they only commit care

and control. Most of the time guardianship vests in the father. Thus, when mother

is entrusted with custody she is entrusted only with care and control.

While making the order of custody of the children, the Court takes into accounts

various factors such as Welfare of the Child, Age and sex of the Child, Wishes of

the Child, and Wishes of the Parent.

The Hindu Minority and Guardianship Act and Guardians and Wards Act lay down

that in committing custody, the welfare of the minor should be of paramount

consideration. In short the child&#39;s welfare is the supreme consideration, irrespective

of the rights and wrongs of its contending parents, although the natural rights of the

parents are entitled to consideration. Further, according to proviso of Hindu

Minority and Guardianship Act lays down that the custody of the minor up to the

age of five should be with the mother. However, that does not mean that thereafter

the mother cannot have the custody of the child.

In determining whether it will be for the best interest of a child to award its

custody to the father or mother, the Court may properly consult the child, if it has

sufficient judgment. Therefore, if the minor is old enough to form an intelligent

preference, the Court may consider the preference. However, there has been a

controversy among the various Courts as to what must be the age of the child to

express its preference.

For more details, visit our Divorce Page

If you are looking for help on Domestic Violence visit Criminal Law Page

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