The consequences of a divorce have long lasting effects on not only the parties to the marriage but also on many other people who have been related to the husband and wife. These parties are equal if not more sufferers of the breakdown of the marriage. One such party is the child born out of the marriage who is the subject matter of the problem of which of the parties to the marriage will get the custody of this child.
The decision of the custody of a child must be cautiously taken by the court as it determines the child’s future. In most cases, the mother is given the custody of the child, but the welfare of the child is a vital factor. Hence in some cases the father gets the custody. One of the factors in determining the custody of the child, is willingness of the child. But if the child is of a very young age, the willingness of the child cannot be taken into consideration.
A divorce highly traumatises a child and under these circumstances it is not possible for the court to ask the child their willingness, that is to choose between the mother and father. Although, the income of the party to whom the custody is being given is not taken into consideration, yet that party must be in the position to provide for basic necessities of the child like education, food, shelter, clothes etc. There have been many cases where the mother was given the custody of the child in spite of not having an income. The courts in these cases, order the father to pay maintenance to the mother. This is because even though the mother does not have an income to provide for the basic necessities of the child, even then the courts look at the best interest of the child which is of topmost priority.
There are no prescribed rules like older boys should be under the custody of their father and younger girls with their mothers. Every case must be decided by its particular facts and circumstances and utmost importance must be given to the welfare of the child.
The law regarding custody of child has evolved over a period of time. For instance, earlier it was a rule that an adulterous mother should be deprived of the custody of the child. But this has now been denounced on the ground that an adulterous mother can be an affectionate and good mother. Laws pertaining to custody have become very important over the past few years because of the rising number of cases. It is the job of the courts to make clear laws and help the parties of a custody case to understand the procedure without any ambiguity so that the cases have a speedy trial and the child is not made to go through a lot of stress. It is very important for the courts to take into consideration all these factors while taking a decision regarding the custody of the child in order to provide for the child a much better and safer future.
This article is authored by Jotham Cherian, student of BBA LL.B (Hons.) at Christ University , Bangalore
