Welcome to Family Court Advocates in Mumbai

What is Domestic Violence?

Domestic violence is not physical violence alone. Domestic violence is any behavior the purpose of which is to gain power and control over a spouse, partner, girl/boyfriend or intimate family member. Abuse is a learned behavior; it is not caused by anger, mental problems, drugs or alcohol, or other common excuses.

Domestic violence is not physical violence alone. Domestic violence is any behavior the purpose of which is to gain power and control over a spouse, partner, girl/boyfriend or intimate family member. Abuse is a learned behavior; it is not caused by anger, mental problems, drugs or alcohol, or other common excuses.

Types of Abuse

• Physical Abuse
• Sexual Abuse
• Emotional Abuse & Intimidation
• Economic Abuse
• Isolation
• Verbal Abuse: Coercion, Threats, & Blame
• Using Male Privilege
• Control

General Law for Child Custody Cases  

The court has the right to appoint a guardian for a minor’s person or property or both under the Guardians and Wards Act, 1890. A ‘minor’ is considered to be a person who is generally under the age of 18; physically and intellectually imperfect and immature and hence needing someone’s protection. This law is applicable to all religions and is considered in conjunction with specific religious laws.

The court considers the following aspects while deciding guardianship:
1. The personal law to which the minor is subject;
2. The age, sex and religion of the minor;
3. The character and capacity of the proposed guardian and his nearness of kin to the minor;
4. The wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property;
5. If the minor is old enough to form an intelligent preference, the court may consider that preference;
6. The court shall not appoint or declare any person to be a guardian against his will;
7. The courts prefer to keep children together and award custody of both together when the issue of custody involves two or more siblings;
8. The child’s comfort, health, material, intellectual, moral and spiritual welfare.

Generally, the courts give custody of a small child to the mother, and older boys and girls to the father and mother respectively. For older children, the courts also take into consideration the wishes of the children. However, none of this is set in stone and if the opposite party can prove that the parent is unfit to be the legal physical guardian of the child, then the courts will rule accordingly.

Child Custody under Hindu Law

Under the Hindu Minority and Guardianship Act, 1956, the custody of all children below the age of 5 years is given to the mother. The custody of boys and unmarried daughters is given to the father. Custody of illegitimate children is given to the mother first and then the father while the guardianship of a married girl is given to her husband. The Hindu Minority and Guardianship Act, 1956 exists in harmony with the Guardians and Wards Act, 1890.

Child Custody under Muslim Law 

Under Muslim personal law, the right to a child’s custody is given solely to a mother unless she is seen as an unfit guardian. This is called the right of hizanat and can be enforced against any person including the father.

Child Custody under Christian Law

The Christian laws do not have any special mention about child custody rights. Hence the Indian Divorce Act, 1869, becomes applicable for all matters pertaining to Christian children and their guardianship. As per Section 41 of this said Act, the courts have the right to pass orders as to the custody, education and maintenance of Christian children.

Child Custody under Parsi Law

The Parsis also do not have any specific laws pertaining to child custody. Hence all such issues are addressed by the Guardians and Wards Act, 1890. Also, under the Parsi Marriage and Divorce Act, 1936, the wife can claim for maintenance to support their minor children. Under this Act, the court has to pass an order within 60 days related to custody of Parsi children and their guardianship.