The issue of child custody is a complicated one and Courts always deal this issue with great care and see the issue from many angles for the welfare of the child and also ensures whether child could get adequate education and also for the normal development for the growth of the minor child and evaluate the circumstances of both parents to avoid the impact of the divorce proceedings on the child psychologically. Court takes responsibility of providing a healthy environment for the development of the child in a normal way despite parent’s divorce.
Both parents are natural guardians. Our country has different personal laws, and these laws govern the custody of child. Apart from following Personal laws, Courts focus more on the welfare of the child.
As per Hindu laws Hindu Minority and Guardianship Act 1956 (HMGA) and Guardians and Wards Act 1890, mother is usually given the custody of minor child aged below 5 years.
Muslim personal laws govern child custody of Muslims, wherein the usual custody would be for the mother and the right is know as right of hizanat. Mother’s right of hizanat is not permanent right as it is made in the best interests of the child, and, the right could be denied from the mother and given to the father if she got disqualified under the provisions of any of their personal laws.
With respect to child custody in Christian marriages, there is no personal law governing child custody and therefore Courts follow the general law i.e. Indian Divorce Act, 1869.
Child custody is a crucial issue for the Courts to decide as both parents try to establish themselves as child’s best parent. Guardian and Wards Act-1890 provide clear provisions for the Court to take decisions on child custody.
- Age and sex of minor child.
- Financial positions and earning capacity of both parents
- Conduct and Parental skills of the parents
- Intelligible preference of the minor child when she/he attains age of 9 years and above.
- Educational background of both parents and their families
- Capability to provide better education to the child.
Courts upon scrutinizing the above factors and in addition to that any other issues depending on the circumstances of the case, may award the permanent child custody to one of the parents. The parent who is denied of the child custody be given visiting rights to see the child intermittently to ensure that child gets love and affection continuously from both parents as they had prior to the divorce proceedings.
Therefore we cannot say or would be difficult to say in one word or in general terms on to the question, to which parent child custody more likely be given. Child custody depends on various factors and it varies from facts and circumstances of each case.
By Anitha Gutti