Custody of Children

Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. During divorce or marriage annulment proceedings, the issue of custody of children often becomes a matter for the court to determine. The court takes into consideration the best interest of the child and awards custody to the parent who will be better capable of bring up the child in a healthy, financially and physically secure environment.

A court may award legal custody of the child to both parents but the physical custody of a child can only be given to one parent. Legal custody of children means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child's housing, educational needs and food etc. Non-custodial parent is normally given visiting rights by courts.
Personal laws of different faiths have different laws to deal with custody of children at the time of divorce or separation of parents.

Custody under Muslim Law.

Under Muslim law, Hizanat (custody) right of the mother is recognized by all authorities. The first and foremost right to have the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. She has the right to the custody of children unless she is disqualified. This right can be enforced against the father or any other person. The mother’s right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right.

The Son

Among the Hanafis the mother is entitled to custody of her boy until he attains the age of 7 years. On the completion of seven years of the boy, the mother’s right of hazanat terminates.
The Shias hold the view that a mother’s right to have custody of her son terminates when he reaches the age of 2 years. But till he turns two, she cannot be deprived of custody under any circumstances except by her own consent.
Among the Malikis the mother’s right of hizanat over her son continues till the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis although remains the same as that of Hanafi school, these schools hold the view that on completion of seven years the boy is given a choice of living with either parent. But in every case the father is entitled to custody of his son on attaining puberty.

The Daughter 

Among Hanafis, the mother is entitled to the custody of her daughter till she attains the age of puberty. Under Ithna Ashari law, the mother is entitled to custody till the girl turns 7 years.
Under Malikis, Shafiis and Hanbalis, the mother’s right of custody continues till the girl is married.

The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Mother cannot surrender her right to any person including her husband, the father of the child. Under the Shia school after the mother hizanat belongs to the father. In the absence of both the parents or on their being disqualified the grandfather is entitled to custody.

Once mother’s right to hazanat as terminated or completed or where the mother is absent, the father’s right to hazanat kicks in a father cannot be deprived of his right of hazanat of his male child of seven years if he is not found to be unfit.

Among Shafiis and Hanbalis, the father is entitled to custody of his female children till they are married.
The father undoubtedly has the power of appointing a testamentary guardian and entrusting him with the custody of his children.

Shia law lays down that a person who has ceased to be a Muslim loses his/her right to hizanat. Also, a hazina who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of hizanat. The cardinal principal of hizanat in Muslim law is the welfare of the child. The rights of hizanat cannot be lost on account of her poverty or want of funds to maintain the child. Also neither the father nor the mother has the right to remove the child from the matrimonial home. Hazin may be deprived of the custody of the child if he is a minor, of unsound mind, or leads an immoral life.

Custody under Hindu Law

Custody under Hindu Law comes under the purview of the Hindu Minority and Guardianship Act and the Guardians and Wards act. In determining the question of custody and guardianship, the paramount consideration is the welfare of the minor. The word `welfare' has to be taken in its widest sense, and must include the child's, moral as well as physical well-being, and also have regard to the ties of affection. The provisions of these laws are read by the courts in complement to each other and not in derogation to each other.

  It is a firmly established practice that custody of children of tender age will be given to the mother since a father cannot provide that maternal affection which is essential for their proper growth. A mother’s affection is indispensable for the proper psychological development of a child in its tender years. 

The Hindu Minority and Guardianship Act 1956 lays down that the custody of a child should ideally be with the mother till the age of 5 years. For older children, our courts are of the view that they should not be put in custody they resist. However their will in such a matter will also be subject to the court’s opinion on where their welfare lies.

Custody under Christian Law.

Christian personal law does not per se address the issue of custody of children. But this was taken care of by the Indian Divorce Act which is a secular act applicable to all religions in the country. It contains provisions relating to custody of children. Section 41 of the said Act provides courts with the powers to make orders as to custody of children in suit for separation. The court, before making its decree in a suit for separation or divorce or nullity, may make such interim orders as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the said Court.

Custody under Parsi Law

The Parsi law for custody of children is taken care of by the Guardians and Wards Act which essentially emphasis on the welfare of the child when deciding on the matter of who to give custody.