The most important and complex issue in a divorce case is ‘Child Custody’˳ Both husband and wife, use child custody as a medium to establish the guilt and fault of the other party˳
In India, Guardian and Wards Act, 1890 is empowered to determine the issue of child custody˳
Generally, the court has the power to grant the following:
(a) Permanent Custody
(b) Interim Custody
(c) Visitation Rights
(a) Permanent Custody
The court awards permanent custody after determination of all aspects of the case˳ Usually, prime criteria is the “welfare of the child˳”
While deciding the ‘welfare of the child’, the court mainly considers following factors:
i˳ The qualification of both father and mother˳
ii˳ Family background of the both father and mother, which includes their financial and academic qualifications
iii˳ Child’s wishes
iv˳ Conduct of the parties
v˳ Overall development of the child˳
(b) Interim Custody
The court awards interim custody during the pendency of the case keeping in mind the overall development of the child˳ While granting interim custody, the court tries to maintain balance between the husband and the wife and also remains cautious that the child is not treated as a shuttlecock between the estranged spouses˳
The court also imposes certain conditions for the welfare of the child like not leaving the country without informing the court, to protect the interest of another party˳
(c) Visitation Rights
The Court grants visitation rights at two stages, at the stage of the trial, and after the determination of the dispute (divorce in most of the cases)˳ Once one of the spouses gets the permanent custody, other spouse has a right to meet the child once a week or as directed by the Court˳ The object of the court is to maintain the emotional bond between the child and parents˳
Conclusion
In matrimonial proceedings, the court has to decide the question of custody of children during the pendency of the proceedings and after the passing of a decree˳ The court can revoke, suspend or vary, any such order made earlier on the change of circumstances˳ While adjudicating upon the custody of a child, the court has to keep in mind the welfare of a child˳ Though court considers other factors as well, however, welfare of the child is of utmost consideration˳ Usually, in female child custody cases, the courts give custody to the mother as at the age of puberty, girl child needs the mother’s care˳ Thus, over and above, welfare of the child is the influential factor while deciding the custodial rights˳
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