Custody of Child under Hindu Law

More than a year ago, I met with a leading lawyer in a southern Indian metropolis to apply for custody of children. As a very warm and sociable person, she did her best to dissuade me from a legal battle: in her opinion, it was time to do other things, such as focus on a career, because my chances of getting custody of the children were negligible. At best, you could ask for “visitation rights” and, given my modest financial resources, she found it unscrupulous to waste my money on frivolous or almost useless litigation. Therefore, at least in times of exploitation, it seems that mothers in our country are most likely to win battles for custody. This is not surprising, as this is an international phenomenon. In the United Kingdom, only 8 % of fathers are single parents (6). In Germany, local laws confer sole custody on the mother, unless she accepts joint custody. In at least one case, the European Court of Human Rights has described this provision as openly discriminatory (7); this has led German lawmakers to reconsider their custody provisions. In the area of judicial intervention, I would like to make a serious appeal for our senior judiciary to issue a number of specific directives on this issue. In the absence of these custody issues, it is essentially based on the discretion of a single judge who comes from our society, who is not always exempt from one stereotype or another. The court has the right to appoint a guardian for the person or property of a minor, or both, under the Guardians and Wards Act 1890.

“Minor” means a person who is generally under the age of 18; physically and intellectually imperfect and immature and therefore in need of someone`s protection. This law applies to all religions and is considered in conjunction with certain religious laws. According to section 13 of the Hindu Minority and Guardianship Act 1956, the court must take into account a single parameter which is the most important consideration of the welfare of a child; in addition, no one is entitled to guardianship if the court considers that his guardianship is not in the best interests of the minor. Practical tip: The well-being of the child is of the utmost importance. The court grants access rights so that the child`s schedule or education is not disturbed. Usually, courts grant visiting rights during holidays and important occasions – such as weekends, summer holidays, festivals, birthdays, etc. In one recent case, both parents were given custody of the 12-year-old`s sustainable growth. The court ordered that the minor be in the custody of the father with his mother from 1 January to 30 June and from 1 July to 31 December.

Both parents were granted visitation rights on weekends when the child was with the other parent. The costs of maintaining the child must be shared equally between the parents. If the child is over 5 years of age, custody can technically revert to the parent, mother or father. Usually, the courts award custody to the mother because she is considered a more natural caregiver. Depending on the situation, however, the courts may even grant custody to the father. For factors considered by the courts when granting custody, see below. A custody order is not permanent for life. It can be changed at any time for the benefit of the child.

The court may change custody if the parent`s situation changes and it considers that it is necessary for the well-being of the child. For example, if the mother gets custody and has to move from a city to a remote village, the child`s education may be affected. Thus, the court can change the custody of the child. The family court in India uses one of the four forms listed below when transferring custody: custody of a child refers to the right granted to a parent by the court to care for the child (if the child is under 18 years of age). The custodial parent should take care of financial security, child support in terms of appropriate lifestyle, health care, emotional, physical and medical development. The other parent has the sole right to access and meet the child. Family courts discuss the issue of custody and base their decision on the best interests of the child concerned. There are no prescribed laws for child custody in Christian laws, but the matters are governed by section 41 of the Native American Divorce Act of 1869. Which court to ask for a change of custody – The same court that made the previous custody order (usually the family court) Courts grant access based on the facts and circumstances on a case-by-case basis. There is no fixed rule for this. For example, if both parents live in the same city, the court may grant the non-custodial parent the right to visit them every weekend.

If the parents are in different cities, the court may grant the non-custodial parent the right to bring the child to his or her city during the holidays. In general, the courts are always in favour of the child having a good relationship with both parents. The courts want to make sure that just because parents have problems with each other doesn`t mean it shouldn`t affect a child`s right to both parents. The detention of a child alone is not sufficient to preclude access rights. Indeed, the custodial parent generally tends to influence the child`s thoughts, and the courts are aware of this. Unless the court considers that access rights harm the child, it will not terminate access rights. When a couple decides to separate by breaking up their marriage, the first issue to be resolved is that of custody and child support. After a divorce or legal separation, children of children under the age of 18 must have a specific place of residence with one of the parents. Each parent has certain rights and obligations towards their children, which becomes a dilemma once the couple decides to divorce. Parental care is one of the issues that greatly afflicts parents and children, and each parent does their best to get legal custody of the parents. In a custody dispute between separated parents, a minor child who has not yet reached the age of five may remain with the mother.

The Supreme Court has ruled that the child should not be treated as “movable property” in such cases. Only the well-being of the child is at the centre of concerns. According to Shia law, custody goes to the mother, she to the father and he to the father. Under Sunni law, the father has the right to custody of a boy over the age of 7 and a single girl who has reached puberty, and under Shia law, to custody of a male child over the age of two and a single girl over the age of 7. Custody of an illegitimate child rests with the mother. Rights of HizanatIn the case of Imambandi v. Mustadi[17], the property of the trial belonged to Ismail Ali Khan (Sunnis). The applicant alleged that, at the time of his death, he had left three widows, one of whom, Zohra, had acquired on his behalf and that of his two minor children the share of the appeal in respect of which they had lodged an appeal. The facilities requested were (i) an explanation of the title and status of the applicant`s vendors; (ii) an order respecting the possession of the shares referred to in the deed of sale; [18] As early as 1980, the Indian Law Commission submitted a report to the Indian government recommending that it amend the Guardians and Wards Act 1890 and propose to amend section 6 of the Act (see above) so that “the mother is permitted to keep a minor until the age of 12.” In his infinite wisdom, this was necessary to prevent the father “from using the child as a pawn to ensure the complete submission of his wife.” Fast forward to 2010, when the Supreme Court heard from an applicant father who was denied access for just over three years, despite a Supreme Court order. In the present case, the Court held that the applicant`s rights were “completely frustrated” and that “the child`s mind has been influenced to such an extent that he has no affection or respect for the applicant” (13). Nor did she mince words when she concluded that the accused had committed “contempt of court” “intentionally and intentionally.” Women are therefore not exaggerated to “use the child as a peasant sacrifice”. The Guardians and Wards Act of 1890 is the common law that provides remedies to parents who are in a custodial conflict after divorce.

Rules and remedies relating to parental custody generally fall within the scope of this Act. The law refers to general laws, regardless of the religion of the parents. .