We need to understand the concept of custody and exactly when the question of child custody arises. When two people get married and have a child together and later on decide to get divorced due to whatever reason on their own, then the question regarding the custody of the child born out of the marriage or in simple words, with whom the child will stay after the split, arises
When two people in wedlock have a child and then, later on, they decide to split, both of them have a right to keep the child with them and it is up to the discretion of the Court to decide which of the parent is more capable of keeping the child with them and hence who should have the custody of the child. The Indian courts dealing with the cases regarding the custody battle of the parents have clearly mentioned that when parents decide to get divorced the person who gets affected the most is the child born out of that marriage, because growing up a child needs both his/her parents equally. So while deciding child custody the court focuses on the “welfare” of the child with utmost importance.
Welfare of the Child
- Safe-keeping of the child
- The ethical upbringing of the child
- Good education to be imparted
- The economic well-being of the guardian
Custody Under Hindu Law
Hindu Minority and Guardianship Act, 1956:
This is Hindu personal law which essentially does not deal with the custody of a child in case of separation but it plays a very crucial role in determining the terms like minor and “welfare” of the child while deciding the cases of custody in the courts.
In Section 13 of the Act, the term “Welfare” is defined and it has been interpreted to its widest possible meaning by the Indian courts over these years which covers the child’s physical, mental, ethical, and moral all-round welfare.
