There is a common perception that custody of child goes mostly to mother because that is the law. Or child support is to be borne by man because that is the law. Actually nothing could be farther from the truth (or law).
Child custody is decided based on principle of paramount welfare of the child. Mostly both parents are ill-advised by lawyers to ask for full custody of the child, and given impracticality of such an arrangement the primary custody normally goes to mother with visitation rights for the other parent. If the parents decide to have shared custody of child the courts cannot by law overrule such an arrangement.
So it results that in most court cases the primary custody of child goes to mothers, and child support being paid by fathers. But the law especially Hindu Family law is gender-neutral in both aspects. It is only on case by case basis that a decision can be made about both custody and child support.
The bare acts say that Custody and maintenance of children are to be shared by
both parents as per HMA and HAMA. CrPC 125 is the only one solely laying
responsibility of maintenance child on man. (Because it does not apply to
About maintenance of children:
1. HMA Sec 26 is about custody, maintenance, and education of children. It does
not talk anything about which parent has more responsibility with regards to
anyone of the above topics. So it is neutral to both parents based on bare
reading, leaving aside judgments and precedents.
2. HAMA Sec 20 talks about Maintenance of children and aged parents. This
section again does not say that the duty lies only with man, it is also neutral.
Regarding parents claiming maintenance from daughter there is a citation
Kirtikant D Vadodaria v. State of Gujarat, 1996 4 SCC 479. This means
Hindu daughter cannot escape from maintenance to parents, so to extend further
Hindu mother cannot escape from maintenance to children.
About custody (guardianship of person) of children:
1. Sec 24 of GWA 1890 states responsibilities of the guardian of person of ward:
GUARDIAN OF THE PERSON
24. Duties of guardian of the person: A guardian of the person of a ward is
charged with the custody of the ward and must look to his support, health and
education, and such other matters as the law to which the ward is subject
Above means that whichever parent has custody /guardianship of ward have to
maintain and spend for education of ward.
Sec 13 of HMGA 1956 states welfare of the minor to be of paramount consideration
for appointment of any person as guardian of child.
13. Welfare of minor to be paramount consideration
(1) In the appointment or declaration of any person as guardian of a Hindu minor
by a court, the welfare of the minor shall be the paramount consideration.
So given that only CrPC 125 lays down man to support child (who has no means), and
none of the other laws say anything to debar man from shared custody of child,
based on bare acts both child custody and maintenance as per
Hindu laws is to be shared by both parents. The proportion of maintenance can
be worked out based on respective incomes of parents but that is a later point.
If both parents are staying not far away from each other so there are
no travel problems for child etc; shared child custody and shared maintenance is
both practical, as per laws, and in best interests of the child which are of
paramount consideration as per Sec 13 of HMGA (which overrides GWA 1890).
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