In India the universal law for custody of children is the Guardianship and wards Act, 1890. Child custody means when the parents are not willing to live together due to any dispute then with whom will the child reside on with whom the rights to deal with the child recede. This usually happens is divorce cases or cases of judicial separation. She court while dealing with such cases keeps in mind the best interests of the child and it is welfare of child alone which is kept in mind. Generally the father is considered to be the natural guardian of a child and it si generally him in whom the custody of child is given. But after the development of law rights of women also started being considered and mother could also get the custody.
Along with the guardianship and wards Act, 18590 the Hindu minority and guardianship Act, 1956 also deals with custody of child in Hindu Law. If the child is below 5 years of age, then the custody is given to the mother because she is believed to be the best caretaker of child physically, mentally on emotionally. After 5 years of age till the attainment of age of majority this right is with father as he is the natural guardian of the child and it is after the death of the father the custody goes to the mother. If any of both of them are not willing to take the custody of the child then generally the custody goes to maternal on paternal grandparents. If the Court facts that the interest will not be better taken case of with parents on grandparents then the court can also appoint any third party for the custody of child.
Under Muslim law the custody of child is known as hizanant and it is generally with the mother in case of a boy less than 7 years and in case of a girl, till the time the attains the age of puberty. The custody of a boy more than 7 years and a girl who had attained puberty on majority is with the father. If the father i.e. the natural guardians dies, then custody moves to the mother and if the is also not there, there to the other relation line paternal grandfather full brother, consanguine brother etc. One can’t be legal guardian on can’t be given the custody of a child if:
1. He/she renounces the world.
2. He/she converts to other religion.
3. He/she is mentally or morally sound to have the custody.
4. He/she is of in sound mind.
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