Custody of Children: Section 26 of the Hindu Marriage Act, 1955

Marriages in India are regarded as very sacred and a once-in-a-lifetime affair. However, in recent years, an increasing number of married couples have experienced pain and incompatibility. In India, there has been a significant increase in dissatisfaction marriages, resulting in an increase in divorces and separations due to a variety of socioeconomic reasons. Since the legalisation of divorce, people around the globe have been working to discover appropriate solutions to post-divorce challenges.

Custody of Children

The most pressing worry is the issue of finding sufficient answers to issues with custody, education, maintenance, and access to children. Child custody can refer to where your children will reside following your divorce (physical custody) or who has the legal authority over their upbringing (legal custody). Both mother and father have an important role in supporting their children's growth and development. In today's social environment, parents must see it as their primary job to raise their children as healthy, happy, and helpful persons with a high level of education and as active members of society. As a result, the objective of guardianship legislation should be to ensure the child's growth and protect its interests.

Section 26 of Hindu Marriage Act

Section 26 of the Hindu Marriage Act states that when it comes to child custody, guardianship, maintenance, and education of minor children, the court can impose interim orders and decree provisions that it believes are fair and right, as long as they are as close to the children's wishes as possible. If a petition is filed, the court can also establish orders and decree provisions regarding the custody, support, and education of minor children following the decree. The court may also revoke, suspend, or amend such orders and rules from time to time.

From this, it can be seen that the court has the authority to grant custody of a minor child and can revoke it at any moment if it determines that doing so is in the child's best interests, taking into consideration their wishes.

Time Period: The court must decide on the aforesaid application within 60 days of issuing summons to the respondent.

Section 13 of the Hindu Minority and Guardianship Act, 1956

According to Section 13 of the Hindu Minority and Guardianship Act, 1956, the court should consider one and only one parameter, which is the paramount consideration of a child's welfare; additionally, no person shall be entitled to guardianship if the court believes that their guardianship will not be for the minor's welfare.

Consideration for Passing Orders for Child Custody

The court considers a number of considerations when deciding on a custody order for a child, including −

• Welfare of the Child

• Wishes of the Parents

• Wishes of the Child

• Age and Sex of the Child

Welfare of the Child

Section 25 of The Guardians and Wards Act of 1890 states that "the welfare of the minor should be of first importance" in cases related to guardianship and custody of minors. The Supreme Court introduced this part as a judicial view in Rajinah v. Dhanpal.

In Vesudevan vs. Vishwa Laxmi, the Kerala High Court granted custody of a child under the age of five to the father rather than the mother, on the grounds that the father is the child's natural guardian and so has the right to custody.

Wishes of the Parents

Parents' wishes are to be considered, but only as one of the elements affecting the child's welfare, and they may be ignored if the child's wellbeing requires it.

In Fulkumari v. Budh Singh, the court stated that, while the desires of the parents were not decisive, they were to be given considerable weight. These, however, would be ignored if carrying them out would be injurious to the child.

Wishes of the Child

It is a statutory clause in all Indian matrimonial statutes that the court would consider the child's wishes if the child was old enough to express them.

However, in the case of Murarilal v. Saraswati, 1925, the Indian Court came to the conclusion that the wishes of the children were an important consideration and that the age at which the child is capable of expressing his intelligent preferences is determined by the child's mental development or maturity. The court rejected the views of the children in Venkataramma v. Tulsai since they were influenced through widespread persuasion and even torture. Thus, the court of law considers that the child's preferences are a relevant issue, but not more important than the child's welfare.

Age and Sex of the Child

The Hindu Minority and Guardianship Act of 1956 has a legislative clause stating that custody of male children over the age of sixteen and female children over the age of fourteen shall not normally be compelled to reside in the custody to which they object.

Types of Child Custody Permitted by Hindu law in India

Child custody

When one parent is granted physical custody, the child is placed under their care, while the other parent is permitted to visit. This is the most popular strategy to provide a child with a family-centered upbringing. While the youngster is still young, his surroundings are satisfying and enriching.

Co-parenting

In the case of joint custody, both parents can take turns caring for the child. Contrary to common opinion, a divorced spouse does not have to live together in order to have shared custody. Joint custody is one of the best custody choices due to two criteria. No parent feels cheated. Custody and access are not comparable. Joint custody guarantees that both parents are active in the lives of their children. Second, the youngster receives both parents' affection. A youngster whose parents have divorced is mentally damaged regardless of the circumstances. Both parents give the youngster equal attention.

Third party custody

Neither biological parent has custody, as the term suggests. Because the court believes that both parents are incapable of parenting a kid, granting either of them custody would be harmful to the child. The guardian of a child must be related to the parents.

Domicile

One parent has sole custody rights. The other parent is fully separated from the child because of a history of abusive behaviour or an inability to benefit the child.

Conclusion

Child custody under Hindu laws in India considers numerous aspects for determining custody of the child, but the primary concern is the welfare of the young child, which includes education, support, and dietary requirements. Furthermore, the court has the authority to remove custody if it is determined that the guardian's attitude is not in conformity with the child's welfare.

FAQs

Q1. What is the law for child custody in Hindu law?

Ans. In the case of a minor child, after divorce, both parents enjoy equal custody of the child. If there is no mutual agreement, the family courts decide who gets to retain the child and make significant life decisions for him or her.

Q2. Can a father take a child away from the mother in India?

Ans. After a divorce, a father may possibly get custody of the child. According to Indian child custody rules, even after a formal separation, both divorced parents have equal rights to the child. When one parent obtains custody, the other does not lose custody and all rights to the child.

Q3. At what age can a father get custody of his child in India?

Ans. If the mother is unable to care for the child, custody will be transferred to the father. If the child is 13 or older and expresses a wish to live with his father, the court will grant him permission.

Q4. How can a mother get full custody of her child in India?

Ans. The Supreme Court decided in Geeta Hariharan v. Reserve Bank of India that the mother can only seek custody if the father dies or is absent. This regulation, however, does not apply if the child is illegitimate. In such a circumstance, only the mother has the right to custody.