The tricky issue of child custody, explained

Custody of Children: A sensitive area of the law

A very sensitive and tricky issue that arises when a couple is getting divorced or their marriage is being annulled is the status of minor children. Minor children are the victims of the troubles in the family, and once separated, where the children will stay becomes a major cause for concern.

Custody proceedings accompany any divorce proceeding usually, and it must be understood that there are two kinds of custody, physical custody and legal custody. Legal custody means that the parent is entitled to participate in decisions that affect the welfare of the child including medical treatment, insurance claims and religions practices.

Having ‘Physical’ custody means that the child resides with that parent, and the parent is responsible for the most basic needs of education, housing and food. The parent with Legal custody is given ‘visitation rights’, which means he/she can meet the children on certain designated days.

On what basis does a Court decide whom to give custody to?

Most people think that custody automatically goes to the mother. Others think that custody goes to the parent with the better lawyer. Neither of them is entirely true. What the Court looks at, more than anything else, is the best interest of the child, not the argument put forward by the parents.

The Court often gives the custody of young children to mother because it believes that a mother can bring up a young child alone better than a father can. This is not a rule, naturally, and the Court will look at factors like financial security, parenting skills and the amount of disruption that will be caused to the child if custody is given to that parent. (A very young child, however, as a rule is looked after by the mother.)

If a child has been living with the mother (which is often the case) for some time after the divorce, the Court may give the custody to the mother, since the amount of disruption caused to the child will be minimised. On the other hand, if the mother is in poor financial health, or has problems like alcoholism and a history of physical abuse of the child, the custody will immediately go the father.

Different laws relating to custody in India:

Which law applies to questions of custody is not an easy question to answer. In Islam, different communities have differing periods of custody. Muslim law recognizes the paramountcy of the mother when it comes to matters of custody. The right of the mother is called the right of ‘Hizanat’, and in the different communities, different periods have been prescribed. The period for boys is also different from the period for girls. Some communities set the period of Hizanat for boys as low as the time till the child has been weaned from the mother. Among other communities, the period of Hizanat is as long as till the son has attained puberty. For Girls, the period ranges from the time the girl has attained a certain age all the way till the time the girl has been married. Only a lawyer qualified in these matters can give you complete guidance.

Among Christians, the Indian Divorce Act is applied, and the Court will make orders for custody while hearing the proceeding for judicial separation. The Courts effort will be to ensure that the child will be well looked after, and that essentials like education and health will be well taken care of. Among some other communities, like the Parsis, the Guardians and Wards Act applies. Here too, the main effort is to ensure that the welfare of the child is maximised.

Finally, among the Hindus in India, there is a legislation called the Hindu Minority and Guardianship act, which covers all aspects relating to minor children and guardians for minor children. Here too, the welfare of the child is the primary focus of the Court.

Is the child’s preference taken into consideration?

Yes, indeed. The Court will first determine whether the child is capable of making an informed choice, and if the child is, its opinion is sought. A child of around nine or ten years is usually thought capable of making an informed choice.
If there are two children or more and they want to live with different parents, the Court will try not to separate the children, and will then decide which parent the children must live with. This will obviously be emotionally devastating for the child which wants to live with one parent and not the other, but it is a difficult choice the Court often makes.

Is the decision of the Court permanent?

No, most definitely not. The decision of the Court is always motivated by the best interest of the child and the welfare of the child, so if it can be shown that staying with one parent is harming the child, custody can be given to the other parent.


Divorce Law in India

Divorce is a very traumatic occurrence for any individual or couple, and the law can only intervene to regulate how the separation between man and woman must take place. In India, most things connected to marriage and family are governed by religions laws. Divorce among Hindus, including Buddhists, Sikhs and Jains, is governed by the Hindu Marriage Act, 1955; Christians by the Indian Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act, 1936; and Muslims by the Dissolution of Muslim Marriages Act, 1939.
Civil marriages and inter-community marriages and divorces are governed by the Special Marriage Act, 1956.

What are the various reasons for divorce recognized by law?

The law will not permit you to get a divorce merely because you are bored of looking at the same face, or because you find someone else more interesting. Some ‘grounds’ have been laid down in law.

One common ground is ‘adultery’ or extramarital sex. Although a valid ground among Hindus, Christian law does not allow a woman to sever ties only because of adultery. Another ground is ‘desertion’, which has been defined as either spouse refusing to cohabit, without just and reasonable cause, for a period of three years. A third recognized reason is cruelty, which is physical and mental abuse and neglect. The last two reasons are a chronic disease affecting either spouse (which can include a sexually transmitted disease, leprosy or a mental ailment) and impotency.

In India, a couple can also get a divorce by mutual consent, where both parties want the marriage to end. The law gives them one year to reconcile their differences, and if at the end of one year, they cannot resolve their differences, the marriage is ended by mutual consent.

How does a person get a divorce?

The law also outlines a procedure which must be followed before you can get a divorce.

Adultery. While no formal definition of adultery exists, it does have “a fairly established meaning in matrimonial law”, namely “the voluntary sexual intercourse of a married man or woman with a person other than the offender’s wife or husband”. While the law considers it valid grounds for either sex, it is often felt that adulterous women are judged more harshly than men.

The various religious regulations are not unanimous on this issue. Hindus are allowed divorce on the grounds of infidelity of either husband or wife. The Christian law, however, would traditionally not have granted a divorce to a woman solely on the grounds of adultery. She would have had to prove another violation, such as cruelty .A recent Bombay High Court decision “recognised cruelty and desertion as independent grounds for the dissolution of a Christian marriage,” striking down a section of the law that allowed for an unconstitutional distinction between the sexes.


I need to give my apartment on rent and prepare a Rental / Lease agreement. How do I do it?

With the rapid (almost crazy) increase in real estate prices, most people are forced to rent out apartments. Buying an apartment, for long the middle class dream has become a definitely upper class fantasy.

So now that you need to rent a property, you must prepare your rental agreement with great care. A simple Rental Agreement is prepared so often by so many people that they forget how the small things matter. Like is often said, god is in the details.

What must I be clear about?

First of all, be very clear about the rent and the security deposit. Not just the amount, but also on which date the amount is to be paid and how you intend to pay it – by cash, cheque or online banking etc. Next, describe yourself and the tenant / landlord very clearly and systematically. On which date will the property be taken on rent? No, not “around the 15th” or “third week” Be precise.

Next, describe why you want the property on rent. Is it for your personal residence? Or do you also intend to run your medical practice or small shop there? This makes a big difference. Take care of the other little things. Do you intend to keep pets? Is there a building association or society? Does it need to be informed?
Finally, take care of the unpleasant part. If something goes wrong, who has to pay for the repair? What if a major repair is needed? Typically, the landlord pays for the major repairs and the tenant pays for minor repairs. Any damage caused is usually paid for by the tenant. Still, take care to put these things down in writing.

Is there anything I am forgetting?

Yes, after the agreement is prepared, it has to be printed and signed by two witnesses. Choose people who are not mentally unsound and known to you. (The Landlord or the Tenant cannot be the witnesses). Very often, people prefer to print the document on Stamp Paper. This is not strictly necessary but if you are able to, print the document on Stamp Paper. Decide on the value of the Stamp Paper in advance.

And in case things turn sour, remember to include a notice period so you cannot be unceremoniously thrown out overnight. A one month notice period for both the landlord and tenant is common. Most people also make a lease agreement for 11 months, since such an agreement need not be registered and is much easier to execute.

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I am an elderly person who needs to be looked after. Does the law protect me?

In the Indian legal system, until now, elderly persons, both men and women were not given the kind of protection that they deserved. An elderly person who was financially unable to take care of herself had to file a ‘maintenance petition’ under the Criminal Procedure Code and go through the trauma of a court case which could take several months, if not years, to be solved.

Has the situation changed?

Yes, with the introduction of the ‘Maintenance and Welfare of Parents and Senior Citizens Act, 2007.’ This law makes all people with children or grandchildren above the age of 18 eligible to their care and protection.

How does another law help? Don’t I still need to go to Court?

No. Under this law, special ‘Maintenance Tribunals’ have been set up which will look into the complaint of a senior citizen and ensure that he / she is taken care of, in not more than 3 months.
And the word ‘maintenance’ means that everything needed for a normal, healthy life, including food, clothing and basic shelter have to be provided.

What if my children or grandchildren cannot afford to take care of me?

The law is meant to protect you and not harm your children. So the amount of care which you get will depend on what your children can afford, and in no event can you demand more than Rs. 10,000 per month. (In today’s era of inflation, that should be increased!)

And what if they can afford to but still don’t take care of me?

The law allows you to immediately approach the ‘Maintenance Tribunal’. If you still don’t get any support, you can go back within three months of the payment being due. And in the worst case, if your children or grandchildren have abandoned or deserted you, the law says that they will be fined Rs. 5000 or imprisoned for three months, or both.

Is the law perfect?

No, certainly not. An elderly, weak person may not be able to approach a ‘Maintenance Tribunal’. There is no guarantee that his / her children will take better care of him. However, 90 days is definitely better than 2 years, and the fear of punishment may make callous children behave. In the end, it is more important to cure an imperfection in society than to make a perfect law. And while this law has its faults, it is surely a start.

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Will anyone help me write my Will?

Most people look at Wills differently from the way they look at other documents. There is a sense of finality in writing a Will, not helped by the fact that it is called a ‘Last Will and Testament’. In reality, a Will is nothing more than an expression of your intent.

A Will tells the world at large, after you are gone, that you wanted your wealth to go to a certain person / people or to an organization. That does not mean however that you should wait till the proverbial ‘right age’ to write your Will. It is never too early to plan for the future, and a Will can be changed as many times as you wish.

So, how do I write my Will?

Since a Will is purely an expression of intent, you can write it even on the back of a tissue paper and it will be perfectly valid (Although this is true, please use a more respectable medium!)

Start by outlining all your assets and wealth. Describe the asset. So don’t just say car, say ‘My red Hyundai Santro, TN – 02 – AN 2331”.

Next, decide to whom those assets and that wealth must go. For example, you can divide the property between your children in a 60 – 40 ratio, with your daughter getting 60% and your son getting 40%. If you divide your car in a 60 – 40 ratio, it means that the car can be sold and your children will share the resale price in that ratio.

After that, clearly state who gets all the remaining assets. For example, you might have carefully divided all your assets but forgotten to mention your gold ring which is in your bank locker. Clearly state that ‘All my remaining assets will go to…”

Who is an executor?

An executor is a person whose responsibility it is to ensure that your property is divided the way you wanted. It is not mandatory to mention that in your Will, but it is very strongly recommended. Mention how the executor is known to you (it could even be your best friend)

And just to be doubly sure, appoint an ‘Alternate Executor’ in case your primary executor is unable or unwilling to perform his duty.

What more can I do with my Will?

Plenty more, actually.

You can create a ‘Life Interest’. This means that a property will be used by somebody as long as that person is alive, after which it will go to someone else. This may sound complicated, but it is a common strategy.

For example, you have an ailing mother and a son. You want to give your flat to your son but also want to be sure that your mother will have money for food and medicines. You can create a life interest, which means that as long as your mother is alive, the income from the property will be used to take care of her. After her death, your son will enjoy the property.

Then you can create a Trust. You may say that your house’s rental income will be used to create a trust. The purpose of the trust may be to pay for the education of your son right until he finishes a post-graduate degree in a college of his choice. After that (clearly state this too), it will go to the Cancer Foundation, or go to your daughter, or be used for some other purpose. Naturally, you need to mention who the trustee will be.

Finally, you can appoint a Guardian for your young child. This is only necessary if your child is under 18 years of age. The Guardian will take care of the interests of the child, its education, health and overall well being.

Finishing touches:

Sometimes, people use a Will to explain why they ‘did not’ leave property to somebody. For example, ‘I did not leave property to my son because he has a good job with IBM and does not need my wealth’. This is purely optional. The only advantage is that tomorrow, if the son tries to fight with his siblings over your property, this one line may make all the difference.

You can also use your Will to thank those who meant the world to you when you were alive. ‘I would like to thank my wife Shailaja who was my best friend and loyal companion throughout my life’

So your Will can be a lot more than a distribution system. It can be used as a caretaking mechanism, ensuring that the people you loved are not only provided for, but looked after too.

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