Custody of child

Ans: Temporary Custody and Access to Children under the Protection of Women from Domestic Violence Act, 2005. Orders related to custody may also be passed by a Court during the pendency of proceedings under the D.V.A. Act, 2005 in a manner similar to proceedings under the aforementioned three legislations. As is the case with other legislations, welfare of the child is given paramount consideration. However, orders for custody and access under the D.V.A. Act cannot be permanent, and are only temporary in nature. Section 21 of the Protection of Women from Domestic Violence Act. 2005 reads as under: Section 21 in The Protection of Women from Domestic Violence Act, 2005 deals with Custody orders.  Notwithstanding anything contained in any other law for the time being in force, the Magistrate may, at any stage of hearing of the application for a protection order or for any other relief under this Act grant temporary custody of any child or children to the aggrieved person or the person...

Ans: Upon a cursory reading, it may prima facie seem that section 12 or section 45 do not refer to visitation rights or access to a child. However, the phrases "production of minor by a person having custody of minor at a particular time and place before a person that the Court appoints" and "order for temporary custody' referred to in sections 12 and 45 lead to an obvious inference that the same pertain to visitation rights and access to a child.  Section 12 mentions about power to make interlocutory order for production of minor and interim protection of person and property. Section 45 mentions about penalty for contumacy. In the case of Ansar v. Nadeera and Ors,   a husband had obtained an interim order from the Family Court at Chavara directing his wife to hand over custody of two children on every second Saturday and succeeding Sunday. However, since the wife wilfully disobeyed the order, he filed an application under Order XXXIX, rule 2A of the Code of Civil Pr...

Ans: "Section 45(1) Penalty for contumacy.-(1) In the following cases, namely:- (a) If a person having the custody of a minor fails to produce him or cause him to be produced in compliance with a direction under section 12, sub-section (1), or to do his utmost to compel the minor to return to the custody of his guardian in obedience to an order under section 25, sub-section (1); or (b) if a guardian appointed or declared by the Court fails to deliver to the Court, within the time allowed by or under clause (b) of section 34, a statement required under that clause, or to exhibit accounts in compliance with a requisition under clause  (d) of that section; (c) if a person who has ceased to be a guardian, or the representative of such a person, fails to deliver any property or accounts in compliance with a requisition under section 41, sub-section (3), the person, guardian or representative, as the case may be, shall be liable, by order of the Court, to fine not exceeding one hundred ...

  Ans :  Contumacy of an order Once an order for custody or visitation/access is passed, the parent, in whose favour an order for visitation/access is passed, is often faced with an even bigger dilemma. This is regarding enforcement of the order of visitation/access. If such an order is passed with consent of the custodial parent, a tendency of compliance is usually observed; however, if the order is passed by the Court after a contest by the custodial parent, the non-custodial parent often faces the consequences of frequent violations of the order by the custodial parent. This leads to practical difficulties for the non-custodial parents since: (a) Firstly, it is difficult to prove violation of visitation/access order during an enforcement or execution proceeding; (b) Secondly, the concerned non-custodial parent cannot now and then approach Courts upon frequent violations of order of visitation/access: (c) Thirdly and most importantly, there is no specific provision related t...

Ans: Since it is against the welfare of a child to insulate him from the parental touch and influence of the non-custodial parent, the law requires that a Court must grant visitation rights in ordinary course. If a non-custodial parent is not in physical proximity, use of technology in telecommunications like video-conferencing must be encouraged. Keywords used:  Proximity: nearness in space, time, or relationship.

Ans:  Case study - Petition for child-custody under the Guardians & Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956 In Mausami Moitra Ganguly v. Jayant Ganguly, after Mausami Ganguly's petition seeking divorce was allowed ex parte in September 2002, she filed a petition under sections 10 and 25 of the Guardians and Wards Act, 1890 read with the provisions of the Hindu Minority and Guardianship Act, 1956 before the Family Court, Allahabad in April 2003 seeking a direction against her husband, Jayant Ganguly, to hand over the custody of the child to her and for a declaration in her favour that she be declared as the lawful guardian of her minor son, Satyajeet. Her petition was contested by her husband (the minor's father), Jayant Ganguly. He alleged that having left the minor when he was less than three years of age, Mausami had no emotional bond with the child, and after leaving Allahabad, she had neither talked to the minor nor had enquired about his...

Ans:   Custody of child in Remarriage of parent Remarriage of a parent is one of such factors, which though relevant, may or may not influence a Court's decision to a large extent. The factum of remarriage will only play a supplementary role to the other more influential factors. A comparison of three cases involving this issue may provide an insight into the influence of this factor: (a) In Saraswatibai Shripad Ved v. Shripad Vasanji Ved, when the father of minor had married again, the High Court of Bombay observed that while remarriage by itself may not be a ground for depriving the father of the custody of his minor child; taking human nature into consideration, a step-mother cannot be expected to be deeply interested in the welfare of a minor stepson, nor likely to give him the attention, love and sympathy that the child naturally requires. Therefore, it would be in the interest of the child that it is brought up by its mother. (b) In Lekha v. P. Anil Kumar, the Supreme Court o...

Ans: Section 17 of Guardians and Wards Act, 1890. Matters to be considered by the Court in appointing guardian.—(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property. (3) If the minor is old enough to form an intelligent preference, the Court may consider that preference. (4). The Court shall not appoint or declare any person to be a guardian against his will." A minor's preference, however, is not necessarily decisive and is...

Ans:  Although exhaustive and objective criteria cannot be laid down, for determining as to what is in welfare of the child, a Court broadly considers the following:  (i ) Comparison between financial capacity and upbringing abilities of parents (a) A Court may consider as to which of the two parents has better financial stability to provide for the child's essential needs, education, homely comfort, and daily upkeep; and which of the parents can better provide for the child's development.  (b) A Court may consider as to which of the two parents can foster better intellectual development and inculcation of moral and ethical values in the child. ii) Criminal history of parents:  A Court may ensure that the parent to whom custody of the child is given or retained, does not have any history of abuse or criminal history that may cause prejudice to the child. For example, if a parent has faced criminal charges in the past, it is highly likely that it may cause the Court t...

Ans: The law mandates that it is only the welfare of the child that should be considered while determining custody of and access to child. Be it any of the above referred three legislations, the Court is required to consider as to what is in the welfare of the child. The question, thus, arises as to what is said to be in the welfare of the child, and what does a party need to prove before a Court to establish that it is in the welfare of the child that its custody be given to the said party. The word 'welfare' must be construed literally and must be taken in its widest sense. It must be understood that welfare of child is not to be measured only by money or physical comfort. The moral and ethical welfare of the child must also weigh with the Court as well as its physical well-being. Though the provisions of the special statutes that govern the rights of the parents or guardians may be taken into consideration, there is nothing that can stand in the way of a Court exercising its...

Ans: If a proceeding under the Hindu Marriage Act, 1955 is pending in a court, an application seeking relief concerning custody of a minor can only be sought by invoking section 26 of the Act; and an independent application for custody under the Guardians and Wards Act, 1890 is not maintainable because Hindu Marriage Act,  1955 would prevail over Gardian and wards act , 1890. Be it a petition exclusively seeking custody or visitation or an ancillary application seeking custody or visitation filed in pending proceedings under the Hindu Marriage Act, 1955, it should advisably contain specific averments mentioning details regarding marriage, age, and gender of the child, germane factors about a child's health-condition, narration of the fact as to who presently possesses the custody of the child, and more particularly, the facts necessary to determine the interests and welfare of the child. The stages of this litigation are more or less the same as are for contested divorce-petit...

Ans: If a person seeking custody, is proposing to file or has filed a proceeding under the Hindu Marriage Act, 1955 concerning divorce and maintenance, he or she may, in the same proceedings under the Hindu Marriage Act, 1955, seek additional reliefs concerning custody and/or visitation along with other reliefs concerning prayers for divorce and maintenance. Even if a person seeking custody, is impleaded as a respondent in proceedings filed by the other spouse under the Hindu Marriage Act, he or she can file an ancillary application wherein reliefs concerning custody and/or visitation are sought. This remedy is provided for in section 26 (reproduced earlier) of the Hindu Marriage Act, 1955 whereby wide powers are conferred upon Courts to pass interim as well as permanent orders as deemed proper with respect to the custody of minor children while adjudicating proceedings under the Hindu Marriage Act, 1955. Section 26 creates two different situations; i)  The first situation is ...

Ans: A person seeking custody can file an independent and exclusive petition seeking custody and/or visitation under the GWA read with the HMGA Such petition for custody, can be filed before a Family Court, and District Court (if a Family Court is not established in some District) in a manner similar to a petition for divorce or maintenance. Interim measures can also be sought by filing interim application under section 12 of the GWA, which again, is to be filed in manner similar to an application filed for interim maintenance in proceedings for divorce or maintenance.

Ans: There are three legislations, being the Guardians and Wards Act of 1890, the Hindu Minority and Guardianship Act, 1956, and the Hindu Marriage Act, 1955 encapsulate the law of custody and visitation. The object of these laws is not to provide a sword or shield to either of the parents to fight to procure or retain custody of their child with themselves, but to protect the interests of minors. While the Guardians and Wards Act, 1890 (the "GWA") is secular in nature, the Hindu Minority and Guardianship Act, 1956 (the "HMGA") applies exclusively to Hindus. It supplements, and does not substitute, the GWA on the law related to guardianship. 

Ans: Placing reliance on the Black's Law Dictionary, the Supreme Court observed that 'Guardian' is a person lawfully invested with the power, and charged with the duty of taking care of the person and managing the property and rights of another person, who, for defect of age, understanding, or self-control, is considered incapable of administering his own affairs; and 'Custody' means the care and control of a thing or person, as also the keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected, as also the immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Thus, while 'guardianship' is a larger concept that concerns both, child, and its property, 'custody' is confined to its per...

  Ans: While addressing matrimonial disputes between spouses, the question regarding custody of the child born out of the wedlock of the disputants, frequently arises, and unless the parties harmoniously come to a mutual understanding, this question may survive either until the child attains majority or the dispute is settled by a Court of law. Most litigants have a premeditated mind-set and take it for granted that their child should stay with them post-separation, and their justification for such mind- set is that they believe that they are the preferred parent and that their parenting would be much better than their spouse's parenting. It is significant to understand the pragmatic and technical aspects of law related to child custody and visitation to avoid fatal errors while contesting litigation. The law does not provide that just because there is no defect in a parent's personal care and attachment for his or her children, he or she would be granted custody; or that simpl...

Ans: According to Muslim Law, the mother has primary custody of the child  until the age of seven and after seven years of age of child, the father is regarded as the child's guardian by default. The age limit is set to seven because the age of consideration of a major is directly synonyms to the age of puberty. x

Ans: According to the provisions of both secular law and Hindu law, a mother is often granted custody of a child under the age of five. In cases involving older boys, fathers are typically granted custody, whereas the custody of older girls are generally given to mothers. If the child is older than nine years , the opinion of child is also taken into account when deciding the the person to whom the child's custodial rights should be given. Mothers who have been abusive in the past are not granted custody after divorce because the child's welfare is the major consideration.

Ans: Both parents retain equal rights over the child after  divorce in the case of a minor child. Equal right in this context relates to the right to child custody. The family court, however, has the final decision on this matter. The Guardian and Ward Act, passed in 1890 and primarily of a secular nature, is the main source of legislation with provisions to address the issue. The provisions of this Act, however, frequently stand in blatant contradiction to those of the statutes governing personal laws. In this sense, the family court's supervision is crucial since, while rendering its decision, the court seeks to find a balance between the two. The child's custody is awarded to anyone based on the factors which were presented in court. The other parent is granted the right to communicate with the child. Since it ensures that the parent with the custodial right properly looks after the child, the right of access is an another right in the hands of the other parent. Though the ...

Ans: Elements that contribute to a child's welfare are as follows:  When the family courts decide to give one parent the custody of the child, the court will make its judgement with an effort to ensure the child's best future. Four distinct parameters are used to determine the welfare of child, and they are as follows: 1. Proper moral education for the child in question. 2. Assurance of the child's safety. 3. Imparting top-notch education. 4. The custodian rights must be held by a financially secure guardian.

Ans: If a child is under the age of 18, the court may grant one parent the authority to care for the child. It is referred to as having custody of the child. The parent to whom the custody is granted will be obligated to take care of the child's financial security,  healthy lifestyle, medical care, and overall growth in all affairs. The legal right to see and interact with the child is also provided to the other parent who has not the custody of child.The best interests of the child are the primary consideration for the family courts while deciding disputes of custody.  x

Ans: After the separation of parents,  the question of  custody of the kids is crucial. The degree of pain that a child has to endure the traumatic process of divorce of his/her parents has frequently been discussed in films and books. One of the most significant matters on which the court must rule is the custody of a child, which arises after the completion of divorce or judicial separation. x