Meaning:

Custody is the legal right to keep and look after a child, especially the right given to a child’s mother or father when they get divorced

The Hindu laws regarding the guardianship are covered under the Hindu Minority and Guardianship Act 1956, which is similar to the Guardians and Wards Act 1890. Here, the custody of a child who is below five years old is given to the mother, while a child above nine years of age can be consulted by the court regarding his preference for the parent he wants to stay with. For older boys, typically fathers are made the custodians and for older girls, mothers are chosen custodians by the court though there is no law mandating this.As per law, there are various

Under Section 26 of the Act, the court has been empowered to pass any order or make any arrangement in respect of custody, maintenance and education of children during the pendency of the proceedings or after any decree is passed under the Act in any case between the parents of the children. In the absence of any such proceeding only the Guardian Courts can pass such order.

The Act makes provision only in respect of minor children. The orders made under the section can be varied, suspended or revoked from time to time and even after the termination of the proceedings. The object of the section is to enable the court to make just and proper provision for the welfare of minor children.

Types of custodians: granted to parents, which can include the following:

a) Physical custody: This implies that one of the parents acts as a primary guardian and the child stays with him, while the other parent is granted visitation rights and can meet and spend time with the child.
b) Joint custody: Here both the parents get the child’s custody in rotation. This implies that the child stays with each parent for a fixed duration.
c) Legal custody: This means that one or both the parents get the right to take all major life decisions for the child, including those for his education, finances, religious preferences or medical needs, till he turns 18.
d) Sole custody: If one parent is considered unfit to take care of the child, the other parent is given full custody of the child.a) Third-party custody: If both the parents are either deceased, or are unfit to take care of the child, or are abusive, then the court provides custody of the child to a third party such as grandparents or a relative.

Factors Judges Use When Deciding Custody

1. children’s ages.
2. needs of the children.
3. each parent’s ability to meet the children’s needs.
4. relationship between the children and each parent.
5. relationship between the children and other family members.
6. keeping stability in children’s lives.
7. children’s physical and mental health.

The expression ‘child’ in the section covers both legitimate or illegitimate child. The court has got the jurisdiction to make an order for custody of an illegitimate child under Section 26 of the Act. The father has got primacy over the mother with respect to custody of minor’s person as well as property. However, welfare of the child is the paramount consideration.

After, Marriage Laws (Amendment) Act of 2001, in Section 26 of the Hindu Marriage Act, the following provision shall be inserted that the application with respect to the maintenance and education of the minor children, pending the proceedings for obtaining such decree, shall, as far as possible, be disposed of within 60 days from the date of service of notice on the respondent.

The object of making such a provision is that the interest of children is not adversely affected or neglected on account of the proceedings between their parents. Whenever the court proceeds to pass such an order it would take into consideration the wishes of the children as far as possible.

In Kartar Chand v. Smt. Tarawati, AIR 1991 All 255 Bombay High Court laid down that Section 26 provided for interim order from time to time as also for making provisions in the decree with regard to custody, maintenance and educations of minor children consistently with their wishes. Section 26 therefore empowered the court to provide for the maintenance of minor children. It provided for the maintenance of both pendente lite as also after the passing of the decree.

Some general rules of child custody applicable on Hindus are:

1. The custody of a child to the mother as it is believed that the child of such a tender age needs affection and love which can only be provided by the mother.
    
2. It has been a customary practice under Hindu law that the father is the natural guardian and has the ultimate right of custody. This practice has been codified in Section 6 of Hindu Minority and Guardianship Act, 1956 and the custody of children in India above the age of 5 and below the age of 18 years has been the right of the father.
   
   In Geeta Hariharan v Reserve Bank of India, the Supreme Court held that the mother can only claim custody on the pretext of the death of the father or in his absence. However, this rule is not applicable if the child is illegitimate. In such a case, the right to custody is only with the mother.
    
3. The ultimate rule for granting of child custody is that such custody should be in the ‘best interest of the child’. All the rules laid down above can be disregarded on a strong implication of affecting the ‘best interests of the child’ adversely.
4. If the court believes that the parents are unwilling or unable to take care of the child properly or in his best interest, then the court can award the custody of such a child to the close relatives. In a case, close relatives are also not able to dispose of the duties of the parents, then the custody can also be given to a capable third person at the discretion of the court.
    
5. There are certain persons who cannot be given child custody – i. a person who has certain bad habits that will adversely affect the proper upbringing of the child; ii. a person who has ceased to be a Hindu or converted to any other religion; iii. a person who has renounced the world and does not believe in any materialistic pleasure eg. a person trying to achieve nirvana; and iv. a person who is not able to carry out the development of the child in his best interest (in such a case even mother of a child of a tender age can be denied custody).
    
6. Further, the court while deciding on custody can provide the other parent (who is not entitled to custody rights) with visitation rights wherein the other parent can be given some time to visit the child. Such rights can be passed by interlocutory orders and can be modified to suit the changed circumstances.
    
7. In Vikram Vohra v. Shalini Bhalla, the Supreme Court allowed the relocation of the mother and the child in Australia and thereby modifying the visitation rights. But in my opinion, in such a situation it has to be analysed that the reason for relocating is not to adversely affect the other parent and is in the best interest of the child. If this is not the case, then the relocating to adversely impact the visitation rights should not be allowed.

Conclusion

Child custody is a legal custody that is given either to parents or guardians of that child, it all depends on the child’s decision with whom he/she wants to live. After this, the custody of the child is given to that person. Section 26 of the Hindu Marriage Act authorizes courts to pass interim orders in any proceeding under the Act, with respect to custody, maintenance and education of minor children, in consonance with their wishes. The Section also authorizes courts to revoke, suspend or vary such interim orders passed previously. Both parents have equal rights on the child after Divorce. But deciding the right on a minor is a question, but only the court has a right to decide this. But according to section 6(a) of the Hindu Minority and Guardianship Act, 1956 mothers will get custody because considering the welfare of the child and other little things all are seen by the mother