Child Custody in India
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'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
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