Custody after seperation

Custody of a child after separation of parents

We have often heard “Children are fragile, handle them with care”, but what is to be done, when the rents are not willing to resolve their own differences and end up getting divorced.

This article enlightens laws, regarding the custody of a child after the separation of parents.

Under Indian law, the maximum importance is given to the fact, that what is best for the interests of the child, and hence either parent does not have clear primacy to be granted the custody of the child.
As the marriage dissolves, there are various ways for a custody of a child:

  • Joint physical custody: It is a concept where, while negotiating the settlement, both parents will have legal custody, but one will have physical custody, and will be primary caretaker.
  • Sole custody: One parent has been abusive and proved unfit for child’s care, and the other parent is granted custody.
  • Third party custody: It is the scenario, when neither of the biological parents are given custody of the child. Instead, the custody is transferred to a third person ordered by the court.

In India, ‘The Guardians and Wards Act,1890’ is the universal law concerned to child custody, regardless of child’s caste, community or religion. In spite of ‘The guardians and Wards Act,1890’, Hindus have an additional act ‘Hindu Minority and Guardianship Act,1956’. The provisions of both acts are complimentary in nature, and the court is obliged to read them in a harmonious way.

  • Custody under Hindu law:
    • The of tender years (5 years or so) should be under the custody of mother
    • Older boys should be in custody of father, and
    • Older girls in the custody of mother

  • Custody under Muslim law:
  • The custody rights lie with the mother of a child, and she cannot be deprived of it unless, she is found guilty of any misconduct. She has a right of custody as long as she is not disqualified. This right is known as Hizanat and it can be enforced against the father.

    For Son:

    • In Hanafis community, the right of mother over her son terminates after the age of 7 years.
    • The Shias community allows the mother to have custody until the son is not weaned.
    • Among the Malikis the mother’s right of hizanat over her son continues till the child has attained the puberty. This rule remains the same among Shafis and Hanabalis.

    For daughter:

    • In hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malilikis, 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 till they attain the age of 7.

    Father’s right of Hizanat:

    • On the completion of the age by the child up to which mother or other females are entitled to custody.
    • In the absence of mother or other females who have the right to hizanat of minor children.
    • He undoubtedly has the power of appointing a testamentary guardian and trusting him with the custody of children.


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