Child custody is the legal right which is given to the child’s mother or father at the time of divorce proceedings or judicial separation to look after the child. Child custody is the process of controlling, caring and maintenance of the child who is below 18 years of age. There is no law which specifically mentions about the child custody rights under the Christian law. However, the Indian Divorce Act 1869 and the Guardians and Wards Act 1890 is applicable for all the matters that are related to the Christian children and their Guardianship. According to the Section 41, 42, 43, 44 of the Indian Divorce Act 1869, the Courts have the power to pass an order relating to the Custody, Education and Maintenance of the Christian children. There is no personal law which specifically mentions about the child custody rights under the Parsi law.
In India, there are four types of Custody. They are:
- Physical Custody: Under Physical Custody, the child lives with his custodial parent. A custodial parent is a parent who is given physical/legal custody of the child by order of the Court.,
- Joint Physical Custody: In a Joint Physical Custody, the child lives with both the parents for a specific time period. Under the Sole Custody, the child lives with one of the parents only. Under the Third-party Custody, the child lives with the third party, and none of the biological parents has a right on the child.
- Sole Custody: The Sole custody is given in the cases where the other parent is abusive, violent or incapable, etc.
- Third-party Custody: In the third-party Custody, the child lives with the third party, and none of the biological parents has a right on the child.
Child Custody under Christian Law
According to Section 41 of the Indian Divorce Act 1869, the Courts have the power to pass orders relating to the Custody, Education and Maintenance of the children in the suit of separation. Section 42 of the Indian Divorce Act 1869 deals with the power of the Court to pass an order for custody after a decree of Judicial Separation. Section 43 of the Indian Divorce Act 1869 deals with the power of the Court to make an order for custody of children in suits for dissolution/nullity. Section 44 of the Indian Divorce Act 1869 deals with the power to make an order of custody of children after decree or confirmation of dissolution/nullity. Also, the Guardians and Wards Act 1890 is applicable for all the matters that are related to the Christian children and their Guardianship.
Child Custody under Parsi Law
Under Parsi law, there is no personal law that governs the Custody of the Parsi children. However, the Guardians and Wards Act 1890 is applicable for all the matters that are related to the Parsi children and their Guardianship. Section 17 of the Guardians and Wards Act 1890 deals with the matter that is considered by the Court in appointing the guardian. Following factors are taken into consideration while deciding Guardianship.
- The Court takes into consideration the personal law to which the child is subject.
- The age, sex and religion of the child.
- The character and capacity of the (proposed) guardian and his nearness of relatives to the child.
- Any existing or previous relations of the guardian with the child or his property.
- If there are any wishes of the deceased parent.
- The Court takes into consideration the preference of the child if he is old enough to make an intelligent preference.
- If there is an issue of custody which involves two or more siblings, then the Court prefers to keep them together.
- The Court takes into consideration the child’s comfort, health, material, intellectual, moral and spiritual welfare.
- The Court shall not appoint/declare the guardian against the child’s will.
Merlin Thomas Vs C.S. Thomas
AIR 2003 Ker 232
Kerala High Court on 18th February 2003
On 11th February 1995, the marriage was solemnized between Merlin Thomas and C.S. Thomas as per Christian rites. On 3rd January 1996, their child was born. The married life of the parties became strained after some time. Later, the husband was forced to file a decree of restitution of conjugal rights. The subject matter of the Original Petition is the custody of a minor child named Arya Rose Mary, who is six years old. The family court allowed the original petition.
The Family Court directed that the child custody will be given to the father for a period of 5 days in a week (Monday to Friday) and to the mother for a period of 2 days (Saturday and Sunday). During summer vacation, the custody for 1st half of the holiday will be with the mother, and 2nd half will be with the father. The order made by the family court was according to the provisions mentioned under the Guardians and Wards Act 1890. The appeal was made against the order of Family court before the High Court.
The High Court observed that the father is capable of giving better education to his child, but it must also be taken into consideration that the child is a girl child and the company of the mother is more affectionate in developing her personality, intelligence, character, etc. The High Court modified the order of the Family Court to the extent that the custody of the child to be continued with the mother and the father shall get the custody every second Saturday and Sunday in every month and during the time of the vacation period.
It is a well-established principle that the welfare of the child is paramount. It is the most important thing which is considered by the Court while deciding custody. The orders relating to the custody of the minor children are temporary orders, and it can be changed if there is any interest in the welfare of the child. Hence, child custody does not automatically get transferred to a particular parent, and any parent who wants the child custody can seek custody from the Guardian Court. It is important to note that a mother has the primary, also known as first rights over her child. However, this thing does not affect in deciding the custody of the child.