March 7, 2024

Child custody and guardianship: a legal complexities

This article is written by Ms. Akriti Gauri 2nd year law student Lloyd Law College, Greater Noida.

ABSTRACT:- 

The article will throw a light on the custody and the guardianship of the child which in itself is a burning topic in the field of Family Law. Since many of us would get confused between these two terms i.e. , custody and guardianship, the article will provide the slightest difference between these two and what Indian laws says on custody and guardianship. Since custody and guardianship can be a major source of psychosocial distress among the child and the parents. It will deal with the legal complexities that come while deciding the rational judgements for the ownership of the child and on what circumstances the custody and guardianship of the child occurs. The family law provides for the legal remedies, protection and act like a safeguard of the child. Furthermore, some landmark responses by the judiciary to come at the conclusion of best interest of the child or welfare of the child. In addition to it, the article will analyse the different personal laws and some landmark judgements and cases by the Court of Law. The child custody is crucial because it is the children who bear the brunt of dissolution of marriage, or family dispute or alienation . Since they are the most sensitive person and the tension can impact them badly in their mind. 

 

Keywords:- Custody, Guardianship, Psychological Distress, Legal Complexities, Safeguard, Personal Laws, Judicial response. 

 

INTRODUCTION:- 

To begin with, the guardianship  or legal guardianship refers to the authority of a child given by the court of law other than the biological parents. The person who has been appointed as a guardianship known as guardian.  Generally the guardianship or the guardian is the legally appointed person by the court of law to look after the child. Guardian acts like a shield who protects and defends from the wrong and makes decisions on behalf of the child. There can be several types of legal guardians according to the need and responsibilities, while some of them are: – 

  1. Interim guardian is like a temporary guardian of the child who has to take confirmation of the court before making any decisions. 
  2. Guardian of the estate is also an appointed person who is responsible for the all the assets and finances. 
  3. Guardian of the person is one who takes care all the  basic needs like, food, education, health and makes decisions in the best interest of the child. 
  4. Testamentary guardian  is get appointed when either the father or the mother of the child is no more. 
  5. De facto guardian includes the person who serves the child out of their natural love and affection and takes decisions in the interest of the child and manages the finances. 

While, custody refers to the biological parents of the child. The question for the arises when the parents get separated. Custody is given to the person who is more connected with the child, like parents or who shares the parents like relations or belongs to the same family members. The person who get custody referred as custodian. The custodian takes all the crucial decisions for a child that needs to be done.  Custody also have its different types , these are:- 

  1. Legal custodian has the authority to take decisions on the behalf of the child and like a parent of a child. 
  2. Physical custodian is also like a parents to a child who is the carer of the child. 

Custody to a child addressed by the court when it is the matter of divorce. 

 

INDIAN LAWS:- 

Family law itself is a complex and emerging day to day with the society(culture, social, and religion). The Law governs various matters related to familial relationships, child Custody, divorce, etc. In which child custody gets more attention it is so because of conflicts between the parents, their separation, financial conditions. The family law encompass different personal laws based on the religious affiliation like Hindu Laws, Muslim Law, Christian Laws, Parsi Laws. There are some statutory laws apart from these above which deal with the legal guardianship and custody without regardless of their religion. In family law, the leading issues are mostly related to either divorce or child Custody. These personal laws are:- 

  1. Hindu Marriage Act, 1955 in which section 26 authorises the court to order related to the Custody, maintenance of the child. 
  2. Hindu Minority and Guardianship Act, 1956, provides various rules and regulations for the Hindu young ones including guardianship and custody. This act consider the mother of the child as a legal guardianship and custodian till age of five years old. Till then, the mother will look after , and believe to be the best interest of the child till five years of age. 
  3. Muslim law provides that the mother is best care taker of her child and her child  custody shouldn’t be taken away until and unless she is not best fitted for it. And father is considered to be a natural guardian however custody will fall under mother till the puberty. 
  4. Parsi Marriage and Divorce Act of 1936 also provides the safeguard and maintenance, custody of the child in section 49.

Apart from these, the paramount concern is the ‘ welfare of the child’ or  say ‘ best interest of the child’ .  Why it is a crucial concern? Since welfare of the child not only talks about custody of guardianship of one but also takes care that the child should be given the best and positive environment so that the child has not suffer with trauma. Even in case of, Gaurav Nagpal v. Sumedha Nagpal, the Supreme Court laid out several principles for determining child custody. It also put forward the concept of welfare of the child by stating that the child should share strong  bond with both the parents by steady environment through which the child would get best out of best and that will ensure growth. And, in case of  Anil Kumar Jain v. Maya Jain, the Supreme Court emphasized that the child’s health, development and wellbeing should not get badly affected. It is so because the proceedings takes long time to get settle. In Saraswatibai Shripad Ved v. Shripad Vasanji Ved where the court held that the willingness of father and mother will not get priority over the child but the child desire should be in concerned and the same was held in case Gaytri Bajaj v. Jiten Bhalla where the court stated that the child’ s willingness , an appropriate environment, personal and healthy growth will be decided before the Court of Law. 

 In case where child is below the age of five then the mother is the best interest to have the custody but if in case the age is above five either parents can get the custody but till the age of minority. Since guardianship and custody are not permanent and therefore, if the court found that the custodian is incapable to fulfil the child necessity then the court can grant the custody of the child to the other. The day child attains the age of majority the child can is considered to be much intelligent to take his or her own decision and the court will not intervene or not empower to decide on the behalf of the child. However,  irrespective of the legal custodian, both father and mother will bear the child expenses equally. 

No law is absolute and can get amended or repealed according to the need likewise the Family Law also get recommended to amend by the Law Commission of India where the Commision tries to draw attention towards the existing law in May 2015. 

 

CONCLUSION:

Since child is the one who suffers more whatever breakdown happens in the family or in between the parents. And they are very sensitive and should not be burnt with a lot of strain and depression not should be dragged before the court every time. Neither custodian nor guardian are permanent and hence can get challenged or questioned anytime before the Court of Law and the court has to give the paramount concern to the child’s favourable environment. Therefore, this will ensure that the child’s future is safe and protected, regardless of changing familial circumstances.

 

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