Child Custody Law in India

CChild 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 child custody often becomes a matter for the court to determine. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent.

In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody 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. In most cases, the non-custodial parent still has visitation rights. Many of the religions practicing in India have their own personal laws and they have their different notion of custody.

ority and Guardianship Act 1956 (HMGA)

Guardians and Wards Act 1890 (GWA).

Joint Physical Custody:

A new concept that has evolved while negotiating divorce settlements. Both parents will have legal custody, but one will have the physical custody (child resides with him or her) and will be the child's primary caretaker.

Sole Custody:

One parent has been proven to be an abusive and unfit parent and the other parent is granted custody.

Third Party Custody:

Neither of the biological parents are given custody of the child. Instead, the child custody is granted to a third person by the court.

The Guardians and Wards Act, 1890 is the universal law pertaining to issues involving child custody and guardianship in India, regardless of the child's religion. However, under secular principles, India also sanctions laws pertaining to different religions

Restitution of Conjugal Rights

Restitution of Conjugal Rights in Hindu Marriage Act

If your spouse has left you without giving any reasonable ground, the Hindu Marriage Act 1955 gives you remedy in the form of Section 9 under the restitution of conjugal rights. The section 9 of the HMA reads that when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply for restitution of conjugal rights.

What the aggrieved party needs to do is file a petition to the district court and on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, the judge may decree restitution of conjugal rights in his favor.

Three essential conditions for Section 9 of HMA

Firstly, one party must have withdrawn from the society of the other; secondly, the withdrawal must be without any reasonable reason, and thirdly, the aggrieved party applies for the restitution of conjugal rights. Once these conditions are fulfilled, the district court may decree of restitution of conjugal rights to bring about cohabitation between the estranged parties.

If the aggrieved party is unable to convince the district court and it founds that the petitioner is guilty then the decree of restitution of conjugal rights is not granted. An added advantage from this is that if the parties are not following the decree for cohabitation after the passing of the decree, continuously for one year, it becomes a ground for divorce under Section 13.

In modern India, the remedy is available to Hindus under Section 9 of the Hindu Marriage Act, 1955, to Muslims under general law, to Christians under Section 32 and 33 of the Indian Divorce Act, 1869, to Parsis under Section 36 of the Parsi Marriage and Divorce Act, 1936 and to persons married according to the provisions of the Special Marriage Act, Section 22 of the Special Marriage Act, 1954.

Judicial Separation

Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition to the district court praying for a decree for judicial separation on the ground that the other party-

• has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
• has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party; or
• ) has, for a period of not less than one year immediately preceding the presentation of the petition, been suffering from a virulent form of leprosy; or
• has, immediately before the presentation of the petition, been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner; or
• has been continuously of unsound mind for a period of not less than two years immediately preceding the presentation of the petition; or
• has, after the solemnization of the marriage, had sexual intercourse with any person other than his or her spouse.

Explanation.-

1- In this section, the expression "desertion", with its grammatical variations and cognate expressions, means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage.

2- Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

• Divorce Petition Drafting
• Counseling & Mediation