Monthly Archives: March 2011

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.

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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.

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