When the parents get separated by the decree of divorce, this creates a great impact on the life of the children who are born out of such wedlock. The court will decide who will get custody of the child after the divorce. Under Indian law, the welfare of the child is the paramount consideration against the right of parents.
Various factors that help the court in deciding the question are:
- The economic status of the guardian.
- The safety of the child.
- The moral and ethical upbringing of the child.
- The education of the child.
- The welfare of the child.
The legislature enacted the secular law for the guardianship of the child i.e., GUARDIANSHIP AND WARD ACT, 1890. This secular act remains in conflict with the personal laws of custody of the child after the separation of the parents.
Both the parents have an equal right to get custody of the minor child. However, the power to decide who gets custody of the child is lying in court. The court balances the secular law and personal laws and gives decision while considering the welfare of the child.
The custody is given to one parent; it doesn’t imply that another parent doesn’t have a right to visit and see his ward or to be in contact with him. The growing child must have love and affection from both parents. The court decides the visiting rights of the parent with the conditions it thinks fit.
In the case of a five-year child usually, custody is given to the mother under secular as well as personal law.
The child who is above nine years of age is given the right to choose between the parents, with whom he wants to live. In most cases, the father gets the custody of the male child and the mother gets custody of the female child.
In case the mother is financially weaker than the father, her right doesn’t get affected by her financial status. But the court can order the father to provide the maintenance for the child.
In cases where the father solemnizes the second marriage, then the mother is always the appropriate guardian for the child.
Section 26 of the Hindu marriage act, 1955 talks about the maintenance, care, education of the child who was born out of valid wedlock and both of his parents are Hindu by religion. In this act, the court can pass an order for the maintenance of the child at any time
Under section 38 of the special marriage act, the parents can seek custody of the child, if they solemnized the court marriage. In this act, the court can pass an order for the maintenance of the child at any time.
For seeking the custody of the child under the Hindu minority and guardianship act. The act requires that both parents should be Hindu by religion.
In section 13 of the Hindu minority and guardianship act, “the welfare of the child is the paramount consideration.