child Support & Child Custody Law in India

A-381,Defence Colony,

New Delhi-110024,India

Phone: +91-11-40513913

Child support is one of the most important forms of alimony or spousal support post divorce. As child support is for the benefits of the child both the parents are expected to take the initiation to make proper provisions on child support alimony. Incase if it is a mutual divorce, parents should consult the lawyer to help them in dealing with the child support prior to the filing of the divorce petition. In a contested divorce the receiving parent must make it a point to claim a hansom amount from his or her spouse as the sum of money for child support is solely concerned with the welfare of the child.

Child custody is well related to child support as the parent who is awarded with child custody is the one who receives child support from the other parent or the one who gets the visitation rights. Though alimony is the part of taxable income for the spouse who gets it but on the contrary the child support is exempted from tax for the person who is granted with the child financial support. The spouse who is paying the child support already pays the tax levied on the support amount to the government.

Child support and visitation rights also have a positive effect on the child. Due to frequent meetings with the separated parent will make him or her believe that he or she is still close to the parent. On receiving both the emotional and financial support from the other parent will certainly lead to a feeling that his or her parent still loves and cares for him.

THE GUARDIANS AND WARDS ACT,1890

Power of the court to make order as to guardianship

(1) Where the court is satisfied that it is for the welfare of a minor that an order should be made-

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian,

the court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.

8. Persons entitled to apply for order

An order shall not be made under the last foregoing section except on the application of -

(a) the person desirous of being, or claiming to be, the guardian of the minor; or

(b) any relative or friend of the minor; or

(c) the Collector of the district or other local area within which the minor ordinarily resides or in which he has property; or

(d) the Collector having authority with respect to the class to which the minor belongs

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 well-being, and also have regard to the ties of affection.

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.