Child Custody Cases
Legal Framework of Child Custody in India
- Guardians and Wards Act 1890: The elemental secular law presiding over child custody and guardianship through all religions is the Guardians and wards act, 1890. It comes into execution when all the personal laws are silent or when the court feels it essential to prioritise the well-being of a child. Section 7 of the act allows to appoint a guardian for a minor child, by making sure the wellbeing of the minor child as its priority. Section 25 of the act allows a guardian to seek custody of the child if someone illegally hold back the child from the real guardian.
- The Hindu Minority and Guardianship Act, 1956: This act will be applicable to all Hindus, inclusive of Buddhists, Jains, Sikhs, and it works beside the Guardians and Wards Act, 1890. Section 6 of the act states that the father is the natural guardian of a Hindu minor child, but if the child is below the age of five years the custody of a minor child will always awarded to the mother. Section 13 of the act takes priority over other provisions by highlighting that the well-being of the child is the most essential factor in considering custody or guardianship.
- Muslim Personal Law (Shariat) Application Act, 1937: This act is relevant to all Muslims, As per Islamic Law the mother of the child is generally given the custody known as Hizanat, in the child’s young age, but men also have the rights of guardianship (Hizanat age restrictions vary by school of thought). Generally girls stay with their mother till the time of puberty, while boys can stay till the age of seven years. However this differ, and if the well-being of the child is in danger or the father is shown unfit, the court can intervene. Indian courts have held that the wellbeing of the child is primary where there’s a conflicts among Sharia’s.
- Special Marriage Act, 1954: This act is applicable to inter religion marriages and secular cases. Section 38 of this act offers a framework for guardianship and custody in certain cases. Courts utilise child centric path, prioritising the wellbeing and welfare of the child, similar to Guardians and Wards Act.
- Protection of Women from Domestic Violence Act, 2005: Section 21 of the act allows the court to provide the mother interim custody of a child in the cause that she is the sufferer of domestic violence. This provision safeguards the health and safety of a child in dangerous circumstances. In order to protect a child from an abusive environment, courts may provide interim custody orders under this act. Generally, later decided by family or civil courts.
- The Indian Divorce Act, 1869: Section 41 and 42 of the act deals with the situation. This act allows both parents to ask for the custody in the circumstances of divorce between them. Courts make judgements relevant in what is best for the child, and they often give mother’s custody of younger ones.
- The Parsi Marriage and Divorce Act, 1936: This act is applicable to Parsis. Allows custody to be determined during proceedings of divorce with an acknowledgment of welfare of the child. Generally, The Guardians and Wards Act abide by similar principles.
- Juvenile Justice (Care and Protection of Children) Act, 2015: This act is applicable to every community. When a child is neglected or parentless, or unavailability of any other legal guardian, the JJ act comes into effect. For the best interest of child, guardians or adoptive parents may be granted with the custody of child under The JJ act. This law has changed to deliver remedial, child centric focus, especially when the child’s real parents are not able to provide for them.
- The Constitution of India and the Rights of Children: The state is encouraged to safeguard children’s growth and health by Directive Principles of State Policy by Article 39(e) and Article 39(f). When judging on difficult custody issues, especially when welfare, well-being, and safeguarding them are the major concerns, court may make recommendations to the constitutional provisions concerning the rights of children.
- The Family Court Act, 1984: Section 9 of the act deals with the conciliation and settlement issues regarding the marriage, divorce, child custody and guardianship. This helps in before litigation process to resolve and settle the custody issues amicably.
Types of Custody
- Sole Custody
- In a sole custody arrangement, one parent (the custodial parent) has primary physical and legal custody of the child.
- The custodial parent is responsible for making important decisions regarding the child's upbringing, such as education, healthcare, and religious matters.
- The non-custodial parent typically has visitation rights, allowing them to spend time with the child, but we may have limited decision-making authority.
- Joint Custody
- Joint custody involves both parents sharing physical and legal custody of the child.
- Both parents have the right to make important decisions together regarding the child's well-being.
- This arrangement allows for substantial parenting time with the child by both parents, and it often requires effective communication and cooperation between them.
- Legal Custody
- Legal custody pertains to decision-making authority over the child's life, including choices related to education, healthcare, religion, and other significant matters.
- It can be awarded solely to one parent (sole legal custody) or jointly to both parents (joint legal custody), or a guardian if parents don't exist, or in other special circumstances to someone appointed by the court.
- Physical Custody
- Physical custody determines where the child will primarily live and how parenting time is divided between the parents.
- In a sole physical custody arrangement, the child resides with one parent most of the time, while the other parent may have visitation rights.
- In joint physical custody, the child spends a significant amount of time living with both parents, often on a schedule agreed upon or ordered by the court.
- Temporary Custody
- Temporary custody is an interim arrangement established during the divorce or separation process.
- It provides a temporary solution to ensure the child's well-being while the final custody arrangements are determined.
International Legal Framework of Child Custody
- The United Nations Convention on the Rights of a Child, 1989: It is a universal human rights treaty that specifically outlines the rights of children in different streams such as: politics, economics, and culture. It gives a framework for safeguarding and care of children, inclusive of some legal principles of child custody.
- Bilateral and Multilateral Agreements: Countries may enter into an agreements with each other, either bilateral or with multilateral countries involved, to address the issue of child custody and cases of parents taking away their child unlawfully. For example: India haven’t signed with Hague convention, but have special kind agreements with another countries to facilitate cooperation on child custody and cases of abduction.
- Bureaucratic Principles of International Custody Disputes: In cases of international child custody disputes, the recognition of jurisdiction specially, which court acquire the authority to decide the case is very crucial. Various nations follows different fundamental principles when setting up jurisdiction.
- International Mediation Centers: Many different nations have created international mediation centers committed in dealing with cross-border child custody disputes. These centres are specially designed to guide parents in negotiating, that respects the rights of the child while forbidding the long court battles.
Judicial Activism
In many cases, Indian Judiciary took initiative in the welfare of the children and their custodial rights. These are a few:
- T. Venugopalan v. Thulasi Mani (2005): In this case Madras High Court held in this judgement that a parent’s financial stability shouldn’t be the only factor used to decide custody. Furthermore, custody judgements should be grounded on child’s emotional needs and general welfare. This decision made clear that, even while having financial stability is necessary, a child’s emotional and developmental needs should always be top priority while deciding custody.
- Lekha v. P. Anil Kumar (2006): The High Court of Kerala held that financial stability is not the only determining factor of custody, the child’s emotional, mental well-being and connection with each parent are also necessary. The court acknowledged that custody should not be solely grounded on substantial wealth but should contemplate the care and supportive environment a parent can provide.
- Abhijit Kundu v. Nil Ratan Kundu (2008): In this case Supreme Court held that when deciding custody, the child’s psychological and emotional welfare should be considered as priority. In this case, the father was shown unfit, therefore court granted custody to maternal grandparents of the child. This judgement maintained the significance of child’s mental and emotional health and the idea that custody judgements should take the child’s consistency and comfort into consideration rather than just biological relationships.
- Gaurav Nagpal v. Sumedha Nagpal (2008): In this case Supreme Court held that in the disputes of custody, welfare of the child is the top-priority and mandatory. The court highlighted that the parental rights are inferior when it comes to the best interest of the child, which should be the prior attention in deciding the custody.
- Anjali Kapoor v. Rajiv Baijal (2009): This case deals with difference between Guardianship and custody. The Supreme Court rules that, in spite of the fact that a parent might be the legal guardian, the custody can still be given to the other parent if it relates or in the best interest or well-being of the child.
- Roxann Sharma v. Arun Sharma (2015): The Supreme Court ruled in this case that, unless the mother is displayed to be ill-suited or unfit, custody of the child under the age of five years old should ideally belong to her. However the principle of welfare still regulate the conclusion, the court held that the small children needs maternal care and nurturing.
- B.R.Srinivas v. K.M.Vinaya (2016): In this case Karnataka High Court granted joint custody for both parents, saying that the child should be given the chance to build relationship with both parents. In order to assurance the child had often access to both parents, the court suggested a co-parenting strategy. This judgement is important for improving the ideas of cooperative parenting, joint custody, and guiding both parents in continuing to be diligently involved in their children’s lives
- Vivek Singh v. Romani Singh (2017): In this case The Supreme Court recognized the emotional effects on children of parental separation and acknowledged it as an element in custody disputes. The court adapted custody rules post concluding that a welfare of a child could be damaged by dispossessing their relationship with the other parent.
- Yashita Sahu v. State of Rajasthan (2020): In this case Supreme Court emphasize the significance of joint custody and virtual visitations in the case of custody, especially in circumstances where parents live in different locations, states or overseas. The court held that a child’s welfare from maintaining a healthy relationship with both parents whether virtually or physically.
Legal Remedies for Non-compliance of an Order
Non-acceptance or failure to adhere to court’s command that is legally obligatory is known as non-compliance of an order. Following can be the remedies:
- Filing an Execution Petition: An execution petition is a legal apparatus exercised to enact court’s order. If one parent goes through noncompliance with a custody orders or visitation orders, they can exercise their right of this petition under section 25 of the Guardians and wards act, 1890. The parent should file the petition in the same court where the custody order has been issued.
- Filing for Contempt of Court: Declining to obey the custody orders of the court might route for being held in contempt of court as per Contempt of Courts Act,1971. The parent who is being refused visitations or custody has an option of filing contempt proceedings.
- Initiate Contempt Proceedings: If an individual is intentionally breaching the orders of custody, one can submit a petition in the family court in accordance with the section 10 of the Family Courts Act, 1984, also under Order XXXIX, Rule2A of the code of civil procedure.
- Seeking Police Assistance: In circumstances like one parent has illegally taken the child or denying to return back the child along with the visitations, the rightful parent can seek support from law enforcement authorities. The court may command the police to regain the child and return them to the rightful, legal or custodial parent.
- Alteration of Custody or Visitation Orders: If there is any kind of need with the non-compliance of custody or visitation orders, the compliant parent can file the petition before a court for alterations of the custody ordering. The court has complete discretion to alter, adjust visitations and custody orders based on the occurrence of the case, such as welfare of the child, altering the primary custody of the child by transferring it to the compliant parent if necessary, and regulating the rights of visitations.
- Habeas Corpus (Article 226 or Article 32 of Indian Constitution): In cases where one parent has illegally holding up the child, the other rightful parent can file a petition of habeas corpus in the High Court. This writ is used to take the child before the court to make sure that the custody of a child is legal. The court may instruct the police to detect the child and return them to the legal guardian. This writ is issued under Article 32 (Supreme Court) or Article 226 (High Court) of the Indian Constitution, managing the non-compliant parent or third person to bring a child in the court and explain why they have kept the child if the court finds it illegally, it will direct immediate release and sent back the child to the rightful guardian.
- Criminal Actions for kidnapping or Abduction: In major circumstances where a parent run away with the child or shift them to another place or jurisdiction without the permission of the court, the other parent if feels necessary can file a criminal complaint for kidnapping or abduction under The Bhartiya Nyaya Sanhita, 2023 (BNS). Under relevant sections like: Section 137 which defines kidnapping and section 138 which defines Abduction. Initiating a criminal complaint should contemplate as a final way out in such circumstances.
- Custody Orders and Restitution of Conjugal Rights: In circumstances where custody orders are given along with a decree of the restitution of conjugal rights, mainly in cases of separation or divorce, the CPC allows the application of such orders. The CPC’s execution provisions also permits for application in cases of non-compliance with restitution orders under section 9 of the Hindu Marriage Act, 1955.
Procedures for Filing Application for Child Custody
- In case of matrimonial disputes and separation of partners, if there is a dispute of child custody, application can be filed before the Family Court and in absence of the establishment of the Family Court, it can be presented before the Court of Sessions, under appropriate laws of child custody as mentioned above.
- All the essential ingredients of the grievances should be mentioned in the application/petition.
How Can Seasoned Advocates Help You?
- In-deep Case Assessment: To reach for a final result, seasoned advocates begin with precisely examining each case. This involves being aware of the client’s aims and objectives, the client’s necessities, the history of family, and any specific circumstances that might influence the court’s decisions.
- Customized Legal Strategy: Skilled advocates elaborate a plan based on their understanding to acquire the greatest result, whether it is joint custody, sole custody, or the visitation schedule.
- Family Court Procedures: Advocates who often appear in family court are well aware of the intricacy of the proceedings, like jurisdictional necessities, procedures of documents submission, and presentation of evidence. They can help you throughout the litigation.
- Cautious Management of In-Camera Procedures: To maintain privacy, family courts often hold in-camera procedures in cases of child custody disputes. In order to protect the child’s mental health in these conserve environments, our seasoned advocates acknowledge and value the importance of upholding a non-adversarial attitude.
- Professional Mediation for Cooperative Resolutions: Skilled advocates with numerous years of experience in ADR try to settle custody issues without strengthening opposition. They guide parents in coming to collectively acceptable decisions by using mediation and negotiation strategies, which is very helpful in cases like joint custody.
- Encouraging Parental Cooperation: Seasoned advocates provides a joint custody strategy when parents are able to manage together, maintaining the rights of a child to have healthy relationships with both parents.
- Filing for Contempt of Moderation: Seasoned advocates help you with, filling for contempt under relevant family law legislation or parts of Code of Civil Procedure when one parent neglects a custody or visitation order. They make sure that the rights of child to see both parents is defended by guiding the outraged parent in taking immediate legal action to execute compliance.
- Adaptation of Orders for Changing Situations: Seasoned advocates also guide in adjusting, adaptation of custody orders in the occurrence that there are crucial changes to the circumstances, such as parent moving, getting married again, or bringing up new concerns about safety of the child.
- Guidance in Alleged Abuse or Neglect Cases: Skilled advocates carefully compile proof and expert declaration in cases entail claims of abuse or disregard in order to make a credible argument in the court.
- Dealing with Complicated Jurisdictional Disputes: Seasoned advocates provide assistance on Indian and International Custody laws, such as: Hague convention on International child abduction, in international child custody disputes where one parents leaves or planning to move overseas.
- Seeking Implementation of Foreign Custody Decisions: In the disputes involving cross-border custody disputes, seasoned advocates assist clients in acknowledging how Indian courts may explicate or enforce foreign custody judgements.
Conclusion
In conclusion, Indian Laws about the custody of a child are becoming more transformed and fair. They prioritize on what is best for the child while also honouring the rights of parents. Although there could be more modifications to make joint custody more official, the current laws affected by forward thinking court judgements, put the child’s welfare prior. This modifying way of thinking provide children a stable and caring home where they have healthy relationships with both parents, supporting them grow up healthy and happy. To know more, contact us.