CUSTODIAL RIGHTS FOLLOWING PARENTAL SEPERATION

Abstract

The modernization of family life has presented numerous problems before the courts in situations concerning the custodial order that is to be chosen for the child. Child custody is one among the most contentious areas of family law. It encompasses care, control, guardianship, and maintenance of a child which is generally awarded to one of the parents following a divorce or a separation proceeding. The present paper is an insight into the aspect of “welfare of the child” as the paramount consideration in adjudicating custody and guardianship matters which essentially acts as a matter of recognizing and addressing the child’s most fundamental needs in the time of family transition. In this light, the paper shall examine the considerations for passing orders for custody and reflect upon the struggle between mother’s and father’s rights, with children’s needs to be commensurate with either position. These requirements are most appropriately addressed by supporting parents in the fulfillment of their parental responsibilities, a goal to which social institutions such as legislatures and the judiciary are bound. In the course of this paper, the custodial rights shall be examined in the context of various legal frameworks including Guardians and Wards Act (GWA), 1890 ; Hindu Minority and Guardianship Act, 1956 ;Hindu Marriage Act, 1955 as well as on the United Nations Convention on Rights of Child. A special emphasis shall be laid on the concept of joint custody in India. Since the issue is sensitive and requires the court to attach relevance to a number of equally valid consideration, the paper shall explore it in detail and determine which custodial order is most apt according to a particular situation.