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Advice on Divorce


Parental rights in India after divorce

Parental rights are the legal obligations and responsibilities that a parent has for their child. Failing to fulfill the needful duties result in child abuse or neglect, thereby terminating the parental rights legally. But neglecting duties in India is hardly a matter to be considered as enough for terminating parental rights. Termination can be voluntarily or involuntarily, and for various reasons. However, here our concern is to deal with parental rights after divorce.

Child custody is most-sought after aspect of divorce, with each parent trying at their wits end to gain legal guardianship of their child. It is a tormenting whirlpool for parents as well as for the child, with parents and extended family trying to influence the child. Though in India, mothers are naturally favored for legal custody yet courtís decision is based on the best interests of child and not the parentís best argument. Guardianship of child is offered to a parent who is seen most fit for the upbringing of the child, providing better financial security and adequate parenting skills.

However, India being a secular country has to respect religious beliefs as well. Hence, personal laws have different notion of physical child custody.

Custody under Hindu Law

The secular law for appointment and declaration of guardians and allied matters, irrespective of caste, community or religion, is Guardianship and Welfare Act, 1890. Under this act,

         Minor child, under the age of 5, are committed to the custody of mother.

         Older boys to father and older girls to mother, however there is no hard and fast rule and the paramount factor in decision is welfare of the child.

         The choice of child is considered, above the age of 9 and is only held if it complies with the fulfillment of the welfare requirements of child.

         A mother who is proven to neglect the child in his/her infancy is not handed with the child custody.

Custody under Muslim Law

The first and foremost right for the custody of children belongs to the mother and she cannot be deprived of her right so long as she is not found guilty of misconduct. This right can be held against father or any other person. The fatherís right of Hizanat is applicable under all Muslim school of laws only in the absence of mother or the completion of age of the child under which the childís custody was committed to the mother.

Custody under Christian Law

Christian law does not have any provision for custody but the issues are well solved by the Indian Divorce Act which is applicable to all of the religions of the country.

The concept of welfare of child in India is very broadly designed and followed by the court to ensure custody of child be given to most suited parent. This concept is based on number of factors which are as following:

         Age, sex and religion of the father of the child plays major role.

         Character and capacity of the proposed guardianship, false accusations and allegation by parents on each other are ignored.

         Any existing or previous relation of the proposed guardian to the minorís property. Minorís inherited wealth play a major role in deciding the custody of child as it can either be weighed against, if proven to be the only motto of the custody attainment or in favor if propertyís owner and proposed guardian are in relation.

         Minorís preference, usually above age of 9.

         Custody of more than one child. Most often the siblings are not separated for their mental health.

         If parents either/both have remarried.

If any parent do not obey by the decision of court in any respect, loses the parental rights after divorce and if appealed by the other parent.



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