Child Custody : The children born out of the marriage are the ones that are most affected when a marriage falls apart or ends in divorce. Though parents have the right to custody of their children.
The Indian jurisdiction has classified the custody of the child after dissolution of the marriage in the following –
1.Joint Physical Custody: A new concept that has evolved while negotiating divorce settlements.
2.Sole Custody: One parent has been proven to be an abusive and unfit parent and the other parent is granted custody.
3.Third Party Custody: Neither of the biological parents are given custody of the child.
The main question that arises is that who will have the custody of a minor child when a marriage is dissolved.
Both parents have an equal right to a child’s custody. However, who gets custody of a child is also a matter for the court to determine. Furthermore, when it comes to personal legislation, the rules are inconsistent when opposed to a secular enactment in the form of The Guardian and Ward Act, 1890.
In the case law of, Sejalben Arpit shah W/O Arpit vs. state of gujrat on 9th april 2019, the judgement has been passed that when the Court issues a writ of Habeas Corpus in the case of a child, the Court exercises inherent jurisdiction rather than legislative jurisdiction conferred by any specific clause in any special statute. In other words, the use of the writ of Habeas Corpus in child custody cases is not regulated by legislation, but rather functions independently of it. The Court’s authority in such cases is focused on its inherent equitable powers and the State’s force as parents patriae for the safety of its infant ward, and the essence and extent of the inquiry and the desired outcome necessitate the use of a court of equity’s jurisdiction.
Also read: Contemporary Issues in Labour Laws
The primary goal of a habeas corpus petition for an infant is to decide who has the child’s best interests at heart. The Court is confronted with the issue of the parties’ rights as between themselves in a Habeas Corpus proceeding brought by one parent against the other for custody of their child.
As previously stated, the Court is not bound by the mere legal right of the parent or guardian when determining child custody cases in its intrinsic and general jurisdiction. While the provisions of special laws governing the rights of parents or guardians may be considered, nothing may prevent the Court from exercising its parens patriae jurisdiction in such cases, giving due weight to circumstances such as a child’s ordinary comfort, contentment, intellectual, moral, and physical growth, his wellbeing, and other factors.
CHILD CUSTODY UNDER HINDU LAW:
Under the Hindu Minority and Guardianship Act, 1956, the custody of all youngsters below the age of five years is given to the mother. The custody of boys and unwed daughters is given to the daddy. Custody of illegitimate youngsters is given to the mother initial and so the daddy whereas the guardianship of a married woman is given to her husband. The Hindu Minority and Guardianship Act, 1956 exists harmonic with the Guardians and Wards Act, 1890.
CHILD CUSTODY UNDER MUSLIM LAW:
Under Muslim personal law, the correct to a child’s custody is given alone to a mother unless she is seen as associate degree unfit guardian. This is often referred to as the correct of hizanat and might be implemented against a person as well as the daddy.
One issue should be unbroken in mind is that the mother’s right of kid custody isn’t absolute and exists providing such right is helpful and within the interest of her youngsters. Thus, the welfare of the youngsters is at the forefront of Muslim law.
In a case involving the custody of a minor, the health of the child is the most important factor to consider. The well-being of the child is more important than any legal right, preferential right, or other right. Any court of law will give custody to whoever can show to the court that the child’s best interests are best served by them.
यह भी पढ़ें : अधिवक्ता अधिनियम, 1961 Advocates Act, 1961
