Child custody is the word which we hear in family courts, when the spouses are taking the divorce and fighting for the physical custody of their child. The child custody is the custody of the children who is below the age of 18 years.
The matter of child custody comes in front of the court when there is the divorce or annulment of the marriage. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent.
Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child’s housing, educational needs and food. In most cases, the non-custodial parent still has visitation rights.
Child custody in India
Since in India there are many religions therefore we have many personal laws. Thus in the matter of child custody we follow the personal laws of their respective religions.
The Hindu Minority and Guardianship Act 1956 (HMGA) and Guardians and Wards Act 1890 (GWA). These Acts are to be read together and implemented in the matter of child custody and appointment of guardian for the minor.
The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that custody of a child upon the age of 5 years should ordinarily be with the mother.
In Muslim Laws the custody of a child is given to the mother this right is called as right of hizanat. But it is not an absolute right; it is made in the interest of the child. The custody can be given to the father if the mother is disqualified by the provisions of the law.
There is no separate Act for the custody of the child in Christians. Therefore they follow the Indian Divorce Act, 1869, applicable to all the religions.
The custody of the children is provided in Parsi Marriage and Divorce Act, 1936 under section 49.
Whatever the religion is, whatever the personal law is, but the custody of the child is given by the court aftear considering the best interest of the child, as the decision is the most emotional and crucial decision.