Vani Khandelwal, BBA LLB, Symbiosis Law School, Nagpur
ABSTRACT
This paper aims to give the readers an understanding about the dynamic and complicated concept of child custody in India and what are the principles applied by the Courts. The paper starts with a brief introduction to the topic. Various meanings of the term ‘child custody’ has been given out by several judges and scholars. The term has also been explained in a layman language for better understanding. Physical and Legal custody are two concepts which are often used in such matters and therefore, the author provides a comparison of the both. Further, the author discusses the first topic of the paper, i.e. the gradual shift from the doctrine of “parens patriae” to “welfare of the child”. A sharp contrast has been drawn between both doctrines and how has the shift taken place. Provisions contained in various legislations in India which uphold the welfare doctrine has also been stated by the author. Next, the author discusses about how the matter of child custody is governed under various personal laws. Hindu law being the only legislation to have provisions regarding child custody. The other personal laws are governed with the general laws along with their own principles by which they are governed. Several judicial precedents by the Hon’ble Courts in India have also been discussed which further elucidate the understanding of the concept. The judicial pronouncements also give an idea as to how the Courts usually deal with such matters and what are the general principles or rules followed by them. Lastly, the paper ends with a clear distinction between guardianship and custody in legal terms. It also highlights the author’s opinions and progress made in relation to custody matters.
Keywords: Child, Welfare, Personal laws
