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Joint Custody of Child in India
  • By: admin
  • Date: 20 Sep 2019
  • Child Custody
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The concept of guardianship and custody is challenging to our judiciary system for many years and has destroyed the lives of children at a tender age. The trend of guardianship and custody shows the archaic and patriarchal mindset of India. The dilemma a child bears while belonging, residing and confiding only in one parent affects the growth and welfare of the child. In India the following laws deal with the provisions for custody and guardianship:
  1. Guardians and Wards Act,1890
  2. Hindu Minority and Guardianship Act, 1956
  3. Hindu Marriage Act, 1955
Indian laws recognize the concept of Joint Custody for the welfare of a child. The new concept of joint custody is evolving, which gives both parents equal physical and legal custody. Though there are no legal provisions for sharing parenting, the judiciary has taken a step to bring the concept of joint custody. The children of separated parents can get the benefit of having both parents as active members in their life.
In KM Vinayavs B. Srinivas, a judgement was passed giving the custody to both parents for sustainable growth of the twelve-year boy. The court directed the custody to father for six months, i.e. from 1st January to 30th June and mother for a further six months, i.e. from 1st July to 31st December. Right of visitation was given to both parents; also, the cost of education was divided equally between both parents. 
Another order by the Bandra Family Court laid down a joint parenting plan for the custody of Minor. In this judgement, the Law Commission of Indis’s Report No. 257 states certain reforms in Guardianship and Custody Laws in India. The mentioned report acknowledges the need for joint custody to be introduced in law. It laid some suggestions related to the concept of joint custody.
  1. The report proposed to empower and fix a certain amount specifically for child support, which will be continued up to 18 years and can be extended until 25 years of the child’s age.
  2. It included the right of children to have access to grandparents.
Joint custody of a child is where both parents share physical custody of the child, equally or in proportion laid by the court for the welfare of a child. The parents will equally share the responsibility for the care and control of the child and have a joint authority to decide for the child.
There will be no limited visiting period to either of the parents who do not have custody of a child. The law panel has recommended listing the legal framework required to address how custody issues can be handled, what are the factors relevant for decision making, the process of dispute resolution between parents over a child, etc.
Factors to be considered for grant of Joint Custody are as follows:
  1. Preference of the child
  2. Access to check the records of the child
  3. Time of Grant- parenting
  4. Mediation
  5. Decision Making
  6. Parenting plan
  7. Visitation
The law panel report has reviewed all laws, regulations, provision, recommended legislative amendments related to the custody and guardianship of the child. The amendments are essential to bringing these laws in tune with modern social considerations.

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Points to be Noted for Child Custody to Father

By: admin Child Custody 29 Jul 2019

Essential points for Child Custody by Father

Generally, chances of full custody for fathers are good, only when mother has left a child alone in father's care for an extended period, and basically if she was absent from child's life for that time. Custody can be difficult to win by a father, although the courts don't discriminate against fathers. Whether a father going for full custody or joint custody must be prepared for a difficult child custody battle, specifically if the child's mother is also filing for custody.

The custody for a child for Hindus is determined by the Guardians and Wards Act, 1890 (GWA 1890), Hindu Minority and Guardianship Act, 1956. (HMGA 1956) which has an overriding effect on GWA 1890. It means that child custody can be easily granted to women in the interest of the child's welfare.

Consider the following tips to help the father get custody;

Support Payments: Any father who wants custody of a child should regularly make payments for the child’s support. In case a father has an informal arrangement with the child's mother, he should maintain records for payments. He should build a strong relationship with the child.

When the child is not in the father's custody, he should call the child frequently and check on his day. A father can stop by the child's school and get familiar with the administration. He should check on the progress of the child often and ensure the child knows that he's there to offer any assistance necessary.

Maintain Records: A father should maintain an accurate visiting schedule record to help win child custody. He should attend all school and social Gatherings. It is essential for a father who wants custody to attend the child's social, educational, and other important events as the evidence of a progressive relationship with the child.
Space for your Child in your place of Residence: However, small space the father lives in, he must make a special place for the child in his house. The Court will inquire about accommodations during all hearings for child custody. Fathers who want the custody should be prepared to respond to the judge's inquiry regarding housing plans.

Design Plan: A Judge will assume a father to be prepared for child custody, in case child custody is awarded. Fathers should gather thoughtful responses to potential questions by a Judge. For example, a Judge can ask questions about living accommodations, the child's education, including after-school activities and financial readiness.

Be Respectful: A father who wants custody of the child should always remember to respect the mother of the child. How a father treats the mother of the child can be a factor in determining the custody. Those fathers who are rude or disrespectful to the child's mother will also affect the child, along with the chances of obtaining child custody.

Be Honest with Yourself: A father who wants the custody of a child should ask himself whether he can handle it. It is observed that many fathers may have other responsibilities such as other children or multiple jobs, which can affect a father's ability to assume custody of a child, especially in full custody.

Ask someone Wiser than You: A father who wants the custody of a child should speak to others who have been through the process of child custody, as such person may offer insight and let a father who is going through the process know what to anticipate.

Mediation or Arbitration: A father who wants the custody of a child should consider mediation or arbitration before undergoing an adversarial court hearing. In mediation or arbitration, cases are decided by a neutral third party. For a father, custody proceedings in a courtroom may be challenging to handle so he may prefer the smaller, friendlier setting associated with mediation or arbitration.

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Juvenile Justice Act, 2000

By: admin Child Custody 10 Jul 2019

The parliament of India has passed the Juvenile Justice (Care and Protection of Children) Act, 2015 with various debate, protest and intense controversy of its provisions by the fraternity of Child Rights. It came into force from 15 January 2016. The Juvenile Act, 2015 replaced the Indian juvenile delinquency law, Juvenile Justice (Care and Protection of Children) Act, 2000, and allowed the juveniles in conflict with Law of the age group of 16–18, involved in Heinous and dangerous Offences, to be considered as adults.

The Act introduces the concept of three categories of offences, i.e. Petty Offences, Heinous Offences and Serious Offenses. Petty offences mean the offences for which the maximum punishment is the imprisonment up to three years, under the Indian Penal Code or any other law being in force.

Serious offences mean the offences for which the punishment is imprisonment between three to seven year under the IPC or any other law for the time being in force. Heinous offences mean the offences for which the minimum punishment is imprisonment for seven years or more under the Indian Penal Code or any other law being in force. 
The upcoming generations are the asset of our country, and it is our responsibility to ensure a safe environment for them to live. However, it has observed that the rate of juvenile crime in our country is increasing day by day. We can say that Juvenile delinquency is a disease in our society.

The criminal justice system of India has a different approach for every crime, and it also includes exceptions that lead to the clemency of some criminal minds. The exceptions are mentioned in the Indian Penal code, where the courts are more lenient in giving punishment to the juveniles. Our justice system has developed the way that treats the minors in a different way than adults just because our society considers juveniles differently from adults, both in terms of the potential for rehabilitation and level of responsibility. Juveniles are sent to the rehabilitation centre to make their future better to give special care and protection to them, and it is expected that they will turn back as a reformed person. 

Juvenile crimes cannot be stopped only by implementing and amending the juvenile laws. It is more critical to aware of our society about the same.  It is seen that juveniles involved in crime are not criminals they are victims of society. Juvenile delinquency can be stopped, provided special care is taken at home. 
Also, it is observed that severe crimes like rape and murder are gone unpunished when the offender wears the mask of juvenility.

When the juvenile is alleged to conflict with the law and is apprehended by the police, the child will be placed under the charge of juvenile police or the child welfare police officer, who will produce them before the Juvenile Justice Board. The Juvenile Justice Board plays an important role here.

One of the reform includes the Observation Home for Juvenile Offenders. It is an institution, where the delinquent and neglected juveniles are kept until the pending decisions of the case. The observation home admits the children that are brought by the police or probation officers or their parents voluntarily.

The Observation Home has to be placed for changing attitudes and behaviour of the inmates. Juvenile offenders have the same inclination of constitutional rights as an adult, such as a trial conducted be fair and speedy.

The Juvenile is not punished usually, but it can in no circumstances take away the constitutional guarantees of liberty from him/her. The state must protect and rehabilitate the juvenile offenders, but the protection of the juvenile should not be the custody of the child.

Concerning the rehabilitation and reformation of Juvenile, we must build the efficient linkages between the states and districts and also among various government agencies in association with the groups protecting child rights and legal services for the welfare of children and their families. Alternatively, else, the juvenile justice system will become like the criminal justice system resulting in the hardening of children caught instead of reformation.
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Child Custody Under Muslim Law

By: admin Child Custody 12 Apr 2019

The right to a child’s custody is given solely to a mother till she is as fit guardian under Muslim personal law, this is called the power of Hizanat also it can be enforced against any person including the father.

One thing that must be taken under consideration is that the mother’s right to child custody is not absolute and exists only if such power is in the interest and benefit of her children. Thus, the welfare of the children is at the forefront of Muslim law. The first and foremost right to have the custody of children belongs to the mother, and she cannot be deprived of her liberty so long as she is not found guilty of misconduct. Mother has the right to custody so long as she is qualified. This right is known as the right of Hizanat, and it can carry out against the father or any other person. The mother's power of Hizanat was recognised in the interest of the children and no sense; it is an absolute right.''

Son: Among the Hanafis, it is an established rule that the mother's right of Hizanat over her son ends following her son completes the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son until he is accustom. Among the Malikis, the mother's right of Hizanat over her son continues until the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same.''

Daughter:  Among the Hanafis, the mother is entitled to take custody of her daughters till the age of puberty, and among the Malikis, Shafiis and the Hanabalis the mother's right of custody over her daughters continues till they are married. Under the Ithna Ashari Law, the mother is entitled to the custody of her daughters until they attain the age of 7. The mother has the right of custody of her children up to the periods 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 not being qualified, the grandfather is qualified to custody.

Among the Malikis following females are allowed to take charge in the absence of mother: 
  1. Maternal grandmother
  2. Maternal great grandmother
  3. Maternal aunt and great aunt
  4. Full sister
  5. Uterine sister
  6. Consanguine sister
  7. Paternal aunt

Father's right of Hizanat: All the schools of Muslim law recognise the father's power of Hizanat under two conditions that are:
  1. On the completion of the age by the child up to which mother or other females are qualified to custody.
  2. In the absence of a mother or other females who have the right to Hizanat of minor children. Father undoubtedly has the powers of selecting a testamentary guardian and entrusting him with the custody of his children.

Other male relations entitled to Hizanat are:
  1. Nearest Paternal Grandfather
  2. Full Brother
  3. Consanguine Brother
  4. Full Brother's Son
  5. Consanguine Brother's Father
  6. Full Brother of the Father
  7. Consanguine Brother of the Father
  8. Father's Full Brother's Son
  9. Father's Consanguine Brother's Son
Among the Shias, Hizanat belongs to the grandfather in the absence of the father.

The Shia law is very definite and lays down that a person who has ceased to be Muslim is not entitled to the custody of the child. Also, having who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of Hizanat. The cardinal principle of Hizanat in Muslim law is the “welfare of the child”. The rights of Hizanat cannot be taken away on account of her insufficiency or want of money to maintain the child. Also, neither the father nor the mother has the right to remove the child from the marital home.

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