Divorce laws can be extremely difficult for most couples and spouses to make sense of.

However, it is essential for them to understand the basics when it comes to the many terms and conditions of divorce in India. The child custody laws in India are very straightforward, which in turn makes it difficult for parents to comprehend, plan, and prepare for a secure future for their child(ren) once they are divorced. Lets try to make things simple by trying to break out the various aspects of the laws that govern the whereabouts and welfare of children after the divorce of his/her legal parents.

For most parents, seeking the custodial rights of their child is a matter of fighting off the other parent, who much like them, wants sole custody.

The most important factor that couples should take into consideration is to ensure that whatever the decision my be, the welcome of the child in question is adequately looked after.

Custodial rights for a divorce in India are divided into two related components physical and legal. Earlier, most judges would grant the custody to the mother, but now a growing number of cases have seen the right being shared by both parents, which is legally referred to as shared legal responsibility.

As per the judicial system that is adhered to in India, a parent, who has legal guardianship, is responsible for the welfare of the child(ren) in question.

Many at times, the court allots both spouses joint decision making responsibility for making decisions like education, health, religion, and welfare.

While dealing with such a case, the presiding judge may also ask for the opinion of the minor, whose thoughts and comments may be taken into consideration. This is dependent on the two factors the childs age, and the nature of his/her relationship with the parents.

The times in India have changed since the time when mothers were granted custody without second thought. The judges at the time, would also grant healthy alimony and child support to insure that both, mother and child, are looked after for.

Since times are changing, and a growing number of women now have full-time jobs, the legal system has made appropriate adjustments, where the kids welfare plays a major role in the courts final decision pertaining to custodial rights.

Here is a basic summary of the different child custody laws in India, as categorized by religious beliefs, by the Indian penal code:

Hindu law

The Hindu Minority and Guardianship Act 1956, along with the Guardians and Wards Act 1890, lays down the rules of guardianship in India. It states that while the natural guardian of a minor is the father, the custodial responsibility of infants should be awarded to the mother.

Despite these notes, such cases are generally inclined in the favor of the mother, since Indian society sees the relationship and bond that mother and child share to be more essential, and thereby nurturing.

Custody Under Hindu, Muslim, Christian And Parsi Laws

Child custody is a term used in family law courts to define legal guardianship of a child under the age of 18. During divorce or marriage annulment proceedings, the issue of child custody often becomes a matter for the court to determine. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base decisions on the best interests of the child or children, not always on the best arguments of each parent. In general, courts tend to award PHYSICAL child custody to the parent who demonstrates the most financial security, adequate parenting skills and the least disruption for the child. Both parents continue to share legal child custody until the minor has reached the age of 18 or becomes legally emancipated. Legal custody means that either parent can make decisions which affect the welfare of the child, such as medical treatments, religious practices and insurance claims. Physical child custody means that one parent is held primarily responsible for the child's housing, educational needs and food. In most cases, the noncustodial parent still has visitation rights. Many of the religions practicing in India have their own personal laws and they have their different notion of custody.

Custody Under Hindu Law: All the personal law matrimonial statutes make provisions for dealing with the issue of child custody. The provisions in the matrimonial Acts can, however, be invoked only when there are some proceedings pending under the Act. Hindus have an additional Act, viz the Hindu Minority and Guardianship Act 1956 (HMGA). Apart from this, there is the Guardians and Wards Act 1890 (GWA). This is a secular law for appointment and declaration of guardians and allied matters, irrespective of caste, community or religion, though in certain matters, the court will give consideration to the personal law of the parties. The provisions of the HMGA (and other personal laws) and the GWA are complementary and not in derogation to each other, and the courts are obliged to read them together in a harmonious way. In determining the question of custody and guardianship, the paramount consideration is the welfare of the minor. The word `welfare' has to be taken in its widest sense, and must include the child's, moral as well as physical wellbeing, and also have regard to the ties of affection.

The English and Indian decisions are replete with such statements that : (i) the children of tender years should be committed to the custody of the mother, (ii) older boys should be in the custody of the father, and (iii) older girls in the custody of the mother. But these are judicial statements of general nature and there is no hard. and fast rule. As to the children of tender years it is now a firmly established practice that

mother. should have their custody since father cannot provide that maternal affection which are essential for their proper growth. It is also now ac for proper psychological development of children of tender years ma is indispensable.

The Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that custody of a child upon the age of five should ordinarily be with the mother. Under other personal laws, though it is no such statutory provision, the Indian courts have consistently taken view. The following observation of Beaumont, CJ. represents the judicial knew ......if mother is a suitable person to take charge of the child quite impossible to find an adequate substitute for her for the child.

In In Re Kamal Rudra Das J. expressed the same view vividly thus : , I have no doubt in my mind that the mother's lap is God's own cradle for a child of this age, and that as between father and mother, other things being equal, a child of such tender age should remain with mother.'

But a mother who neglects the infant child as she does not want to sacrifice the type of life she leading can be deprived of custody. In respect of older children our courts take the view that the male children above the age of sixteen years and female children above the age of fourteen years, should not ordinarily be compelled to live in the custody to which they object.' However, even the wishes of the mature children will be given consideration only if they are consistent with their welfare! In Venkataramma v.. Tulsi,' the court disregarded the wishes of the children as it found these to induced by wholesale persuasion and were even tortured.

Custody to third persons. -Ordinarily, custody should be given to either of the parents. But where welfare so requires, custody may be given to a third person. In Baby v., Vijay granting custody of two minor children to maternal grandfather, the court observed that even if the father was not found unfit, custody might be given to a third person in the welfare of the child.

Custody Under Muslim Law: The first and foremost right to have 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. Mother has the right of custody so long as she is not disqualified. This right is known as right of hizanat and it can be enforced against the father or any other person. The mothers right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right

SonAmong the Hanafis, it is an established rule that mothers right of hizanat over her son terminates on the latters completing the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son till he is weaned. Among the Malikis the mothers right of hizanat over her son continues till the child has attained the age of puberty. The rule among the Shafiis and the Hanabalis remains the same.

DaughterAmong the hanafis the mother is entitled to the custody of her daughters till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mothers right of custody over her daughters continues till they are married. Under the Ithna Ashari law the mother is entitled to the custody of her daughters till they attain the age of 7. The mother has the right of custody of her children up to the ages specified in each school, irrespective of the fact whether the child is legitimate or illegitimate. Mother cannot surrender her right to any person including her husband, the father of the child. Under the Shia school after the mother hizanat belongs to the father. In the absence of both the parents or on their being disqualified the grandfather is entitled to custody. Among the Malikis following females are entitled to custody in the absence of mother: 1. maternal grandmother 2. maternal great grandmother 3. maternal aunt and great aunt 4. full sister 5. uterine sister 6. consanguine sister 7. paternal aunt Fathers right of hizanatAll the schools of Muslim law recognize fathers right of hizanat under two conditions that are: on the completion of the age by the child up to which mother or other females are entitled to custody. In the absence of mother or other females who have the right to hizanat of minor children. Father undoubtedly has the power of appointing a testamentary guardian and entrusting him with the custody of his children. Other male relations entitled to hizanat are: 1. nearest paternal grandfather 2. full brother 3. consanguine brother 4. full brothers son 5. consanguine brothers father 6. full brother of the father 7. consanguine brother of the father 8. fathers full brothers son 9. fathers consanguine brothers son Among the Shias hizanat belongs to the grandfather in the absence of the father.

When Right if Hizanat may be lost by Hazina or Hazin. All the schools of Muslim law agree that a hazina should be: i) of sound mind ii) good moral character iii) living at such a place where there is no risk, morally or physically to the child iv) of such a age which would qualify her to bestow on the child the care it may need (not applicable to the mother)

The Shia law is very categorical and lays down that a person who has ceased to be muslim is not entitled to the cutody of the child. Also hazina who marries a person not related to the child within the degrees of prohibited relationship forfeits her right of hizanat. The cardinal principal of hizanat in muslim law is the welfare of the child. The rights of hizanat cannot be lost on account of her poverty or want of funds to maintain the child. Also neither the father nor the mother has the right to remove the child from the matrimonial home. Hazin may be deprived of the custody of the child if he is a minor or of unsound mind. Also hazin who is leading an immoral life or who is a profligate has no right to the custody of the child.

De Facto Guardian: A de facto guardian is a concept under which past act results in present status and a de facto guardian is a self appointed guardian. Tayabji defines a de facto guardian as an (unauthorized) person who as a matter of fact has the custody and care of the person and/or of his property. A de facto guardian has no power of alienation of a minors property and that such an alienation is void. He has no power to convey any right of interest in immovable property which the transfer can enforce against the minor. A partition of property effected by the de facto guardian is void and not binding on the minor. The period of limitation to set aside a transfer by the de facto guardian is 12 years.

Custody Under Christian Law: Christian law per se 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 Indian Divorce Act, 1869 contains provisions relating to custody of children. Section 41 of the said Act provides with the powers to make orders as to custody of children in suit for separation. -In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the said Court.

In the case of Rosy Jacob v. Jacob A. Chakramakkal the Court held that: All orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards. It is unnecessary to refer to some of the decided cases relating to estoppel based on consent decrees, cited at the bar. Orders relating to custody of wards even when based on consent are liable to be varied by the Court, if the welfare of the wards demands variation. The Court, after a decree of judicial separation, may upon application (by petition) for this purpose make, from time to time, all such orders and provision, with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the decree, or for placing such children under the protection of the said Court, as might have been made by such decree or by interim orders in case the proceedings for obtaining such decree were still pending. In any suit for obtaining a dissolution of marriage or a decree of nullity of marriage instituted in, or removed to, a High Court, the Court may from time to time, before making its decree absolute or its decree (as the case may be), make such interim orders, and may make such provision in the decree absolute or decree and in any such suit instituted in a District Court, the Court may from time to time, before its decree is confirmed, make such interim orders, and may make such provision on such confirmation, as the High Court or District Court (as the case may be) deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of the suit, and may, if it thinks fit, direct proceedings to be taken for placing such children under the protection of the Court.

In Halsbury's Laws of England, the Law is succinctly in the following terms:"428. Infant's welfare paramount. In any proceedings before any Court, concerning the custody or upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the application of the income thereof, the Court must regard the welfare of the infant as the first and paramount consideration, and must not take into consideration, whether from any other point of view, the claim of the father, or any right at common law possessed by the father in respect of such custody, upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. This provision applies whether both parents are living or either or both is or are dead.

Even where the infant is a foreign national, the Court, while giving weight to the views of the foreign Court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the Courts of any other country."

In the case of Rosy Jacob v. Jacob A. Chakrammakkal, this Court has observed: "Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and who in addition because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels; nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian Court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents, over them.

Custody Under Parsi Law The issue of custody is dealt with by the Guardians and Wards Act of 1890, under which it is a well-established principle that the welfare of the child is paramount - i.e., the most important thing considered by the Guardian Court when deciding custody.

No matter what customs or personal law rules the parents community or sect follows regarding custody, any parent who wants custody and does not presently have custody has to seek custody from the Guardian Court. In other words, there is never any automatic transfer of a childs custody to a particular parent.

Factors Considered by the Courts when Granting Custody # The welfare of the minor is very broadly defined and includes many diverse factors, notably: # the age, sex and religion of the minor: courts take into account the personal law of the father). Thewelfare of younger children is generally regarded as being in the mothers custody; # the character and capacity of the proposed guardian: courts usually reject baseless allegations against mothers; # the wishes, if any, of a deceased parent, for example specified in a will; # any existing or previous relations of the proposed guardian with the minors property: courts do not look kindly on guardians seeking custody just in order to have control over the minors property. But if, for example, the minors property is shared with the mother and she is otherwise a suitable guardian, the court will regard the property relationship as an additional factor in the mothers favour. # the minors preference if she/he is old enough to form an intelligent preference, usually accepted as about 9 years old. # whether siblings would be divided: courts prefer to keep children united and award custody of both to either the mother OR the father. # whether either/both parents have remarried and there are step-children: Although the mothers remarriage to someone who is not the childrens close blood-relative often means the court will not grant her custody, this rule is not strictly followed. Although the fathers remarriage usually denies him custody, sometimes the courts agree to grant him custody especially when the childrens step-mother cannot or will not have her own children. # whether the parents live far apart: courts sometimes do not give the mother custody because she lives very far away from the father who is the natural guardian. But in 1994 an Uzbek woman living in Uzbekistan was given custody; the judge said modern transport had shortened distances and meant that the father could depart from his home in the morning and return by evening. # the childs comfort, health, material, intellectual, moral and spiritual welfare: this very broad category includes the adequate and undisturbed education of the child.

However, the mere fact that the mother is economically less secure than the father, or that she suffers from ill-health or a disability is not usually reason enough to deny her custody because maintenance is the fathers responsibility irrespective of who holds custody. The mental and psychological development of the minor should not be upset by a reversal of the existing status quo: courts will take into account the likely impact of a change in guardians and the childs reaction to this change.

Divorce petition can be filed on any of the legal grounds in India. Once you have decided to move in the direction of divorce it is important that you are prepared for the path ahead. Basic knowledge of legal procedures is very important. You need to do your homework before filing for divorce. The pre divorce preparations include: Going for marital counseling: There are various clinics and associations that offer marital counseling to help the couples decide whether the divorce is actually inevitable. Breaking the family is regarded as the last resort in Indian society. Thus you must try to understand whether the reason for your divorce is actually valid. Looking for a competent lawyer:Only a good lawyer can help you with the contemporary divorce laws. A lawyer is essential for taking you forward at the right track while you are fighting for divorce. It would be better if the lawyer is especially experienced in handling divorce cases. Also your comfort level with the lawyer should be good as you will share personal details with him. Planning you future: Now when you are going to get divorced you need to plan about various issues like financial backup, shelter, child custody, and so on. Things will take time to settle down so you must start planning in advance. Well in order to get a legal divorce from the Indian court you need to take the following steps:

File joint petition in the court stating that you want divorce with mutual consent.

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The petition will be accepted after you show the evidence that you have been staying separately for 1 year. Or if there is no contact between you and your spouse for 7 years then the court will issue a divorce decree.

After the parties file a joint petition the court gives a time of 6 months to reconsider the option of divorce.

If the parties do not withdraw the petition for divorce within that period, the court grants the decree of divorce.

As far as the maintenance is concerned the wife can demand monthly allowance from the ex husband. But if the ex spouse refuses to provide financial support then she can approach the magistrate. The magistrate will then order the husband to pay a monthly allowance to his ex wife. However, the allowance is only permitted till the female is remarried. Every Indian man and wife should have a proper knowledge of how to deal with divorce according to Indian laws. An attorney is definitely required, but your own knowledge and information of various laws will give you a better picture

There are certain phases in your life that affect you mentally and psychologically and ultimately bring about a significant change in your identity. Marriage is certainly a memorable event in your life that assists you in shaping yourself as a new individual. On the other hand, a divorce will lead you to unravel the unexplored tumultuous facets of life. Once you are determined to get a divorce or all set to put an end to the conventional blissful marital relationship, you should first file for a divorce. You might have gone through a long phase of emotional turmoil before making up your mind for divorce, filing for divorce in India is even more distressing as the whole procedure may require from few months to several years. Due to intricate Indian divorce laws a divorce can drain you out both financially and emotionally. If you are firm in your decision in spite of being aware of all the elaborate legal divorceprocesses, allow us to provide you brief information on steps involved in filing for divorce in India. Hiring a Lawyer The very first step in getting a divorce is to hire a lawyer who would be acting as your legal advisor through out the long process of divorce. While appointing a lawyer, you must make sure that he/she is experienced enough to handle your divorce case tactfully and efficiently. Your lawyer should take interest in your case and he/she must devote a substantial time to execute all the legal proceedings of your divorce. It is always advisable that you enter into an agreement regarding the fee structure at the very first day of your meeting with the lawyer. The procedure of filing a divorce According to the Indian divorce laws there are mainly two ways to obtain you divorce, the mutual divorce and the contested divorce. In case of a mutual divorce, you can have a talk with your estranged spouse to come to a settlement and get a no-fault divorce. If you are seeking a contested divorce, you can file your divorce on the grounds that are specified under the particular Indian marriage act that you are entitled to. There are separate divorce laws for Hindus, Christians, Parsis and Muslims. Sikhs, Jains and Buddhists are governed by the Hindu Marriage Act, 1955 for filing for divorce in India. Laws are even laid down for Inter-cast marriages under the Special Marriage Act, 1956. The following are the grounds on which divorces are commonly filed.

Involvement of the spouse of the petitioner in adultery or indulging in sexual relationships outside his/her marriage. Willfully deserting or abandoning the petitioner for a continuous period of two years prior to the filing for divorce in India. Inflicting physical and mental abuses that may cause danger to life and health. Sexually impotent or inability to involve in sexual intercourse. Suffering from incurable diseases and insanity

Your lawyer will draft a divorce petition based on the grounds for filing a divorce in India as mentioned in the Indian divorce laws. You will be expected to provide your lawyer every necessary details and documents that would enable him/her to file the case in the relevant court. For filing for divorce in India, you are required to hand over the following photocopies of documents to your lawyer.

Income Tax statements for the past 2 or 3 years Details of your profession and your present remuneration Your birth and family related information Details of properties and assents possessed by you

Along with the above mentioned documents you need to provide your lawyer with a detailed account of your marriage that includes how and when you got married and what went wrong that led to the break up of the marital bonding you once shared with your spouse. The more honest you are in your account the easier will be for the lawyer to file a strong petition for a contested divorce. For further proceedings you will have to sign vakalatnama to give authority to your lawyer to represent you in the courtroom. Shortly, the court will send a notice and a copy of your petition by registered post to your former spouse asking him/her to appear in the court on a specified date. Facing the consequence of filing for divorce in India is quite challenging as it requires tremendous mental strength to fight against various social stigmas and economical threats. You should be well prepared to confront all impediments that will arise once you file a divorce in court. NEW DELHI: Fathers Day this June 15 will be much more than just cards and flowers for hundreds of men. Led by Kumar Jahgirdhar, ex-husband of cricketer Anil Kumbles wife Chetana, who lost custody of his daughter to his estranged wife, a group of aggrieved fathers have decided to launch a campaign against biased child custody laws.

To start with they will stage a protest march in Bangalore on June 14. The aggrieved fathers, who are fighting custody battles in various courts, will also launch an NGO, Child Rights Initiative for Shared Parenting. It will petition the supreme court to formulate guidelines to determine a childs welfare on scientific grounds which can be used to decide custody matters. They want courts to reserve at least 30% of primary custody for fathers besides quick disposal of custody matters. There is a strong gender bias in favour of women while deciding custody matters even though both parents are competent. It is normally seen that courts, in order to escape from any controversy, blindly give the childs custody to the mother. We want the courts to give joint custody of the children to both parents as for the children both parents are equally important. Joint custody should be the preferred option as it focuses on reducing conflicts thereby contributing towards the welfare of the child. The child is eventually the winner as it gets the best of both parents. We are preparing to file a PIL in the SC to set universal guidelines for a childs welfare which should be adopted in all suctody cases, Jahgirdar said. Jahgirdar, a stock broker, lost his daughter Aarunis custody to the Kumble couple after the court observed he didnt have a woman in his house to take care of his daughter. He, however, was given visiting rights to meet her on weekends. He has since remarried and now plans to approach court again for custody of his daughter.

The group will also conduct awareness camps on issues related to child care, parenting and the importance of both parents in raising children. They will provide counseling to couples and promote the arrangement of joint custody of children while advocating reforms in existing laws and legal procedures so that all sections of the society are delivered justice. In keeping with the principles enshrined in the United Nations Convention on Rights of The Child, children deserve fully functioning, natural, loving, dedicated relationships with both of their parents, equally, in and out of marriage, whenever possible. A parent should not be seen as a visitor by the courts. Every parent should be entrusted with responsibility and respect and should not be treated as visitors. Shared parenting ensures that a child does not have a fractured childhood, Jahgirdhar sai