Custody of child after divorce

Custody refers to the legal right to keep and look after a child, especially the right given to a child’s mother or father after their divorce. Law on Custody of a child is based on different Personal Laws such as the following:

Hindu law-
○ Hindu Marriage Act, 1955.
○ Special Marriage Act,1954.
○ Hindu Minority and Guardianship Act, 1956.

Christian Law-
○ Divorce Act 1869.

● Parsi Law-
○ Guardians and Wards Act, 1890.

In case of Hindu child, the custody is determined under The Hindu Minority and Guardianship Act, 1956 and The Guardians and wards Act, 1890.
○ The custody of a minor who has not completed the age of five years shall ordinarily be with the mother. (Meenakshi v. State of U.P.)
○ In the case of a boy or an unmarried girl above the age of 5 years the custody vests with the father, and after him, the mother according to Section 6 of The Hindu Minority and Guardianship Act,1956.
○ In the case of an adopted son who is a minor, the custody goes to the adoptive father and after him to the adoptive mother. (Section 7 of The Hindu Minority and Guardianship Act,1956)

In case of Muslim Child:
● Section 2 in The Muslim Personal Law (Shariat) Application Act, 1937, deals with Application of Personal law to Muslims.
● Under Muslim law, guardianship is known as HIZANAT.
● Under the Hanafi law in the absence, or on the disqualification, of the mother, the custody of the child, being a male, until he has attained the age of seven years, or being a female, she has attained puberty belongs to
○ (1) the mother’s mother;
○ (2) the father’s mother;
○ (3) the mother’s grandmother how high-soever;
○ (4) the father’s grandmother how high soever;
○ (5) the full sister and
○ (6) the uterine sister.

● There are two types of guardianship over a minor:
○ Wilayah or guardianship of the property and education and marriage of the ward
○ Hizanat or guardianship over the rearing and bringing up of the child. (Akbal Ahmd vs Jamila Khatoon and Another)

Under Christian law, custody of children is dealt under section 41-44 of the divorce Act, 1869.
● The secular legislation that allows courts to determine custody of the child, in conflict upon the parties, is the Guardians and Wards Act,1890
● The Court has the power to make an order for appointment of guardian for the welfare of a minor. (Section 7 of the Guardians and Wards Act,1890)
● Matters to be considered by the Court in appointing guardian as per Section 17 of the Guardians and Wards Act, 1890, are as follows:
○ Law to which the minor is subject, appears in the circumstances to be for the welfare of the minor.
○ In considering the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a de­ceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.
○ The word ‘welfare’ must be taken in its widest sense. The welfare of the child shall also include various factors like ethical upbringing, economic well-being of the guardian, child’s ordinary comfort, contentment, health, education, etc. (Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari)
○ If a minor is old enough to form an intelligent preference, the Court may consider that preference. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the concerned parent to take care of the child. (Gaytri Bajaj v. Jiten Bhalla)


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