Child Custody And Support In Indian Divorce Cases

Divorce is a particularly stressful time for families, especially when there are children involved. Child custody and support are among the most critical issues during a divorce, as they determine the welfare and future of the child. Child support laws in India are governed by various personal and secular statutes that keep in mind the child’s best interests. Courts consider multiple factors, such as the ability of parents to provide financial stability for their child, the child’s emotional well-being, and the parents’ behavior, before awarding custody or child support. 

Child Custody and Support in Indian Divorce Cases

• Child custody generally refers to the entire right of one or both parents to do the upbringing, guardianship, and decision-making on behalf of their children after divorce.
• ‘Child support’ denotes periodic financial support or payment that is made by one parent for the benefit of the other parent comprising elementary living expenses, education, and health care.

Legal Provisions for Child Custody in India

Hindu Minority and Guardianship Act, 1956:

• Governs custody matters for Hindus, including Buddhists, Jains, and Sikhs.
• Recognizes the father as the natural guardian followed by the mother.
• Custody of minor children less than five years old goes to the mother.

Guardians and Wards Act, 1890:

• A secular law applies to all religions in the absence of sufficient personal laws in the matter.
• Gives the power to the courts to appoint guardians in their discretion for the welfare of minor children.

Custody Provisions Under the Hindu Marriage Act, 1955:

Section 26 provides that in issuing custody orders, the courts should consider the best interest of the child.

Muslim Personal Law on Child Custody:

• For a small child, the custody is awarded to the mother in general (Hizanat).
• The father, however, would be the natural guardian, and he is responsible for the child’s maintenance.

Christian and Parsi Laws on Child Custody:

• In the case of Christians, the custody of their children is governed by the Indian Divorce Act, of 1869.
• The custody matter of Parsis is determined under the Guardians and Wards Act.

Types of Child Custody in India

• Physical Custody: In this system of custody, the awarding parent receives regular visitation with the other parent. The primary concern is the involvement in a safe and nurturing environment of both parents in the child’s life.
• Joint Custody: It is when both parents share an equal say when it comes to raising their child. A child would switch between parents on a specified basis on a predetermined schedule every few weeks or months.
• Legal custody: It refers to the bestowed right of one party or both parties to make decisions pertaining to the welfare, education, and other matters of the child. Although the courts generally prefer joint legal custody, sole legal custody by one parent is also quite commonly established in highly contested instances. 
• Special Guardianship: When neither biological parent is judged suitable or available to take care of the child, special guardianship is set in motion. An even greater abnormality would thus give a third party, e.g., grandparents, family, superior authority or any other to provide custody in the interest of the child.
• Sole Custody: A situation arises where it becomes completely necessary to award sole custody to a single parent based on mental, abusive, or other grounds for inappropriateness of any parent in caring for the child. This sole parent is expected to take complete responsibility for the child.

Factors Affecting Custody Decisions 

The factors that the court considers when granting child custody are as follows:

• Well-being and Best Interests: The court probes the physical, emotional, and educational aspects of child welfare.
• Financial Capability of Parents: Most of the time, the court considers these financial issues when they have to assess the financial conditions of each parent and how capable they might be in caring for their child.
• Stability for the Child: This allows for stability in the child’s life.
• Wishes of the Child: Where the child is mature enough to express a wish or prefers one over another, it will be given some appropriate weight.
• Parents Behaviour and Past Records: Instances of one parent being abusive, negligent, or unfit influenced the court’s determination of custody.

Child Support Laws in India

• Obligation by parents to provide child support: All parents are mandated to contribute.
• Maintenance under Section 125 of CrPC/Section 144 of BNSS: A secularization provision providing provision for dependent children who claim maintenance from parents.
• Maintenance under the Hindu Adoption and Maintenance Act, 1956: This Act also provides for the obligation of financial support to minor children.
• Provisions under Other Personal Laws: Muslims, Christians, and Parsis have their various maintenance laws.

Factors Determining the Child Support Amount 

The amount of child support shall therefore rely on various factors: 

• Income and Financial Status of Parents: The income of both parents is considered.
• Standard of Living and Needs of the Child: To maintain a standard of living in accordance with what they had before divorce.
• Educational and Healthcare Expenses: School fees, medical care, and other basic needs.
• Other Considerations: Disability, extracurriculars, and other needs.

Role of Mediation and Counselling in Custody Disputes

• ADR Mechanism: Mediation brings parties together for mutual agreement and assists them to avoid any possible litigation.
• The Role of Counselling for Children and Parents: Emotional support for children and adults going through divorce.

Landmark Child Custody Cases India 

Gaurav Nagpal v. Sumedha Nagpal (2009): 

• Facts: Gaurav Nagpal and Sumedha Nagpal were in a custody battle involving their younger child. The father wanted custody, while the mother contended that she would better provide for the needs of that child.  
• Judgment: The Supreme Court considers that the welfare of the child is paramount in custody cases. It was noted that custody shall not be determined by parental rights alone but must consider what is in the best interest of the child’s upbringing, stability, and development.  

Roxann Sharma v. Arun Sharma (2015):

• Facts: Roxann Sharma and Arun Sharma are a married couple who were fighting over the custody of their minor child. The father had taken the child under force from the mother and had reached a legal battle. 
• Judgment: By the ruling, the Supreme Court unequivocally stated that the mother is the natural guardian of a child suffering from below five years of age unless the father can prove that the mother is unsuitable based on genuine and tangible grounds. The mother had been given interim custody, with a strong note that the child at a very tender age should be with her mother for proper care and nurturing.  

Conclusion

Child custody and maintenance are governed by the well-being of the child. The range of custody orders and obligations of maintenance are created in the interest of the well-being of the child. Various factors should be considered for deciding custody or maintenance determination amount. Mediation and counseling always produce dividends. The parents should unite together for the emotional and financial stability of their children to lessen the impact of divorce. Future reforms, thus, should emphasize joint custody by providing for clearer provisions of joint custody while ensuring that the enforcement mechanisms to ensure compliance on the issue of child support payments is rigid.

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FAQs

1. Who gets custody of the child after divorce in India? 

In India, custody verdicts are based on the good of the child besides parental rights. Regularly, custody of children under five years is granted to the mother, but if the welfare of the child dictates, the courts provide custody to the father or even a third party. Financial position, emotional state, and preference by the child if of an adequate age are some factors ordinarily weighed before custody could be granted.

2. Can child custody and support orders be modified?

Yes, child custody and support orders are subject to modification if some changed circumstance occurs to create a new situation. Courts may review custody arrangements when a change in the financial position of the parent occurs, when a custodial parent remarries, or when some other change involving the needs of the child has occurred. Similarly, child support can be modified with changes in income or changes in the child’s needs.

3. How is child support determined in India?

Child support is determined based on multiple factors, including:

• The financial status and income of both parents.
• The child’s living standards before the divorce.
• Educational and healthcare expenses.
• Any special needs or additional requirements of the child.