In India, custody, guardianship, and visitation rights of children are governed by various laws, including the Hindu Minority and Guardianship Act, 1956, the Guardians and Wards Act, 1890, the Juvenile Justice (Care and Protection of Children) Act, 2015, and the Personal Laws of different religions.Thank you for reading this post, don't forget to subscribe!
Custody refers to the legal right of a parent or guardian to take care of and make decisions for a child. Guardianship, on the other hand, refers to the legal right of an adult to take care of and make decisions for a child who is not their biological child. Visitation rights refer to the legal right of a non-custodial parent or other family member to spend time with the child.
Here are some key points to keep in mind regarding custody, guardianship, and visitation rights of children in India:
Custody: The Hindu Minority and Guardianship Act, 1956, applies to Hindus, Buddhists, Jains, and Sikhs, and provides that the father is the natural guardian of a minor child. However, in case of the father’s death or incapacity, the mother becomes the natural guardian. If both parents are dead or incapable of taking care of the child, the court may appoint a guardian.
Guardianship: The Guardians and Wards Act, 1890, applies to all children, regardless of their religion, and provides for the appointment of a guardian by the court if the child’s parents are dead, incapacitated, or unfit to be guardians. The court may appoint any person as a guardian, but the welfare of the child is the paramount consideration.
Visitation rights: If one parent has custody of the child, the non-custodial parent may seek visitation rights. The court may grant visitation rights if it is in the best interests of the child. Visitation rights may be restricted or denied if there is evidence of abuse or neglect by the non-custodial parent.
Personal Laws: Personal laws of different religions, such as Muslim Personal Law, also govern custody, guardianship, and visitation rights for children of that religion.
where do you file a Petition and which provision of law ?
Petition under Section 25
of the Guardians and Wards Act, 1890
Where do you file an appeal against order of the Family Court to set aside the judgment of the Family court and under which provisions of law.
Appeal under Section 47 of the Guardians and Wards Act, 1890 before the High Court
It is important to note that the laws relating to custody, guardianship, and visitation rights are complex and depend on the specific facts and circumstances of each case. It is recommended to consult with a lawyer for legal advice regarding these matters. Taps9 Legal Services
The Hon’ble Supreme Court in Shri Rajinder Kumar Mishra Vs Shrimati Richa AIR 2005 All 379, held that “It is well settled that welfare of the minor child is of paramount consideration while deciding the dispute about the custody. If the custody of the father cannot promote the welfare of the minor child equally or better than the custody of the mother then he should not be allowed to the custody as the same may adversely affect the welfare of the child.
The Guardians and Wards Act, 1890, relates to appointment and declaration of guardians; duties, rights and liabilities of guardians and all laws relating to the Guardian and Ward.
Age of majority under Section 3 of the Indian Majority Act, 1875 stipulates “that every person domiciled in India shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before”.
Therefore until one has attained the age of 18 years , one will be considered a minor. The Hon’ble High Court of Delhi while dealing with a habeas corpus petition in Mohammad Nihal Vs State ( decided on 8th July, 2008) has taken the aid of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 which states that, regarding matters pertaining to succession, inheritance, marriage, divorce, guardianship, etc, where the parties are Muslims, the Muslim Personal Law (Shariat) shall be applicable.
The Hon’ble Court has futhur held that, “if some doubt prevails pertaining to the applicability of Shariat laws in guardianship matters, it stands clarified by virtue of Section 6 of the G&W Act. When a court is called upon to determine the welfare of a minor so far as appointment of a guardian is concerned, this exercise will have to be determined in consonance with Shariat Law”.
The Hon’ble Court even furthur held that in consonance with section 2 of the Majority Act which states that its provisions do not impact on matters of marriage, dower, divorce and adoption, the Indian Majority act cannot be looked into while ascertaining the age of a minor and the personal law of the parties would be the driving factor.
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