Hindu Minority and Guardianship Act | Law Answer Online https://lawansweronline.com Legal Advice From Law Experts Thu, 05 Nov 2020 11:54:07 +0000 en-US hourly 1 https://wordpress.org/?v=6.8.2 https://lawansweronline.com/wp-content/uploads/2020/06/cropped-loogoo-32x32.png Hindu Minority and Guardianship Act | Law Answer Online https://lawansweronline.com 32 32 What is the difference between guardianship rights, access or visitation rights and custody rights? https://lawansweronline.com/frequently-asked-legal-questions/what-is-the-difference-between-guardianship-rights-access-or-visitation-rights-and-custody-rights/ Thu, 10 Sep 2020 11:11:43 +0000 https://lawansweronline.com/?p=1370

People generally get confused in above three concepts. But all three are different concepts. Custody implies the living of the child with one parent. Guardianship implies the rights of parent or guardian over the child’s person and property. It involves the authority to dispose the property of minor child. While visitation or access rights are provided to the non- custodial parent to visit the child or to interact or have communication with child or to have the child stay with him or her for certain limited period to share his love and support with child when the child is in continuous custody of other parent. Visitation rights are generally treated as the rights of child to have love and support of both parents. Guardianship and custody rights are the rights of parents.

Another concept which we generally see during child custody cases is child support or maintenance and the both parents are responsible to provide for it. Usually the non- custodial parent deposits the maintenance to the Court or pay directly into an account which is paid to, or accessed by the custodial parent afterwards. Court can order both parents to deposit amount in the name of child too which can be withdrawn by the custodian parent or guardian for the needs of the child.

The orders of custody, visitation rights and guardianship rights are never final as they are interlocutory in nature and can be modified, or cancelled by the Court for the welfare of the child upon the proof of changed facts and circumstances of the case as held by Supreme Court in Jai Prakash Khadria vs. Shyam Sunder Agarwalla & Anr on 12 May, 2000.

Hindu Marriage Act, 1955, Domestic Violence Act, 2005, Hindu Minority and Guardianship Act, 1956 and Guardian and Ward Act, 1890 are the Acts under which the specific orders regarding these rights and duties are granted by the Court.

]]> How does the custody of a girl child work in India? https://lawansweronline.com/frequently-asked-legal-questions/how-does-the-custody-of-a-girl-child-work-in-india/ Tue, 08 Sep 2020 10:21:38 +0000 https://lawansweronline.com/?p=1324

In India, the law does not provide any special provision regarding the custody of girl child. The law generally provides the criteria and procedures to be followed by the Court while dealing with child custody. However, the Muslim Personal law provides the specific provision that mother is entitled to the custody of her male child until he has completed the age of seven years and of the female child until she has attained puberty (i.e. at the age of 14or 15 years generally) unless found guilty of misconduct. Section 6 of Hindu Minority and Guardianship Act, 1956 provides that custody of minor child who has not completed 5 years shall naturally be with mother. Except these two specific directions, all the custody laws provide that best interest of child or welfare of child should be the paramount consideration for Court while deciding custody. These two specific directions can be ignored by Court if it conflicts with best interest of child.

A Petition to get child custody is made under Section 26 of Hindu Marriage Act, 1955 or Section 7 of Guardian and Ward Act, 1890 (especially in case of Muslims, Christians and Parsis).

Section 17 of Guardian and Ward Act provides that the Court should consider the personal laws to which child is subject and welfare of child. So the Court tries to strike a balance between all laws and grant custody for the better interest of the child.

Section 13 of Hindu Minority and Guardianship Act, 1956 and International legislation of Convention on Rights of Child held in 1989 also provided the best interest of child as a factor to be considered by the Court for custody.

So in India, the main criterion to decide the custody of a girl child is her best interest. The parent in whose custody, the child’s best interest can be ensured will get the custody. Usually in many matters the Court has granted the custody to mother especially in cases of girl Childs. But it doesn’t mean that father cannot have the custody. In recent judgment DSG vs. AKG, on 16 December 2019, three judge bench of Supreme Court including Mr. Justice U.U. Lalit, Ms. Justice Indu Malhotra and Mr. Justice Krishna Murari granted custody of the minor daughter to the father, and visitation   rights   to   the mother while upholding the principle of best interest of child.

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