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Child Custody Laws–India

Child-custody determination means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. Family law courts in our country usually have an unbiased judgment in matters relating to child custody, based on the best interests of the child, and not always on the best arguments or accusations of the parents.

After getting done with a hard divorce, working out an agreement that includes child Custody and visitation can be tedious, especially when there is antipathy between you and your spouse. Independent of whether you’ve had a recent separation or a prolonged one, there is definitely something you can do about this.

From the general viewpoint, the court is inclined to offer physical custody of the child to whichever parent is more secure financially, has reasonable parenting skills, and has lesser issues. In most cases, the non-custodial parent still has many rights. However, many religions in India have their own personal set of laws that define a different norm of custody.

LAWS ASSOCIATED TO CHILD CUSTODY

Custody under Hindu Law

Section 26 of Hindu Marriage Act, 1955

This act deals with the custody of children with both parents following the Hindu religion. In any proceeding under this act, the court can pass orders and make provisions when and where they feel the need, with careful consideration and respect to the custody, maintenance and education of minor children, and after being commensurate with the child’s wishes.

In any proceeding under this Act, the court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may deem just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes, wherever possible and may, after the decree, upon application by petition for the purposes make from time-to-time, all such orders and provisions with respect to the custody, maintenance and education of such children as might have been made by such decree or interim orders in case the proceeding for obtaining such decree were still pending and the court may also from time-to-time revoke, suspend or vary any such orders and provisions previously made: Provided that the application with respect to the maintenance and education of the minor children, pending the proceeding for obtaining such decree, shall as far as possible, be disposed of within sixty days from the date of service of notice on the respondent.

Section 38 of the Special Marriage Act, 1954

In any proceeding under Chapter V or Chapter VI the District Court may, from time-to-time, pass such interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible, and may, after the decree, upon application by petition for the purpose, make, revoke, suspend or vary, from time-to-time, all such orders and provisions with respect to the custody, maintenance education of such children as might have been made by such decree or interim orders in case the proceedings for obtaining such decree were still pending.
Provided that the application with respect to the maintenance and education of the minor children, during the proceeding, under Chapter V or Chapter VI, shall as far as possible, be disposed of within sixty days from the date of service of the notice on the respondent.

Section 41 of the Divorce Act, 1869

Power to make orders as to custody of children in suit for separation: In any suit for obtaining a judicial separation the Court may from time-to-time, before making its decree, make such interim orders, and may mill such provision in the decree, as it deems proper with respect to the custody maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may if it thinks fit, direct proceedings to be taken for placing such children under the protection of said Court.

Custody under Muslim Law

According to the Muslim law, the mother has the ultimate right to have custody of her children and she can, in no way, be dismissed of this right as long as she is not accused and found guilty of misconduct. This right is known as right of hizanat and it can be enforced against the father or any other person. The mother’s right of hizanat was solely recognized in the interest of the children and in no sense it is an absolute right”

Custody under Christian Law

Christian law per se does not have any provision for custody but the issues are well solved by the Indian Divorce Act which is applicable to all of the religions of the country. The Indian Divorce Act, 1869 contains provisions relating to custody of children. Section 41 of the said Act provides with the powers to make orders as to custody of children in suit for separation. -In any suit for obtaining a judicial separation the Court may from time to time, before making its decree, make such interim orders, and may make such provision in the decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it think fit, direct proceedings to be taken for placing such children under the protection of the said Court.

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Child labor in India

Child labor in India

Being a resident of India, we all have experienced some form of Child labor around us, be it Full-time, Part-time or bonded labor, and so, as a responsible citizen of this country, it is our moral obligation to be informed about social demons such as child labor, and to lend support to children who are in desperate need for help.

India has one of the highest percentages of children below the age of 18 involved in labour activities. This is a scar deep rooted in the Indian society and needs to be addressed at the earliest. Child labour involves children under the age of 18 participating in economic activities on a part-time or full-time basis. Children resolve to these activities in an attempt to add a certain amount of income and financially support to their families.

Child labour is a practice that deprives children of their childhood, and is extremely harmful for their physical and mental development.

CAUSES OF CHILD LABOUR

Poverty:

Poverty was, and continues to be one of the prime causes of Child labour in our country. In a developing country such as ours, uneducated and poor people often consider children as a financial help to feed and support their families. This forces the decision makers of a poor household to send their children to work in extreme conditions for minimal amount of money which may then help the family to overcome its financial crisis.

Lack of education:

It is a depressing reality that a majority of the poor children in our country are incapable of understanding the importance and power of a sound education. This is due to the lack of emphasis laid on education at a poor household, and moreover due to the fact that their parents are not financially competent enough to afford an education for them. This lack of education causes families to give prior importance to short-term child earnings, in place of the long-term benefits of education.

A survey conducted in 1998, the national census of India, estimated the total number of children aged 4-15, associated with some form of labour, to be at 12.6 million, out of a total child population of 253 million in the 5-14 age group. A more recent nationwide survey conducted from 2009-2012 showed a marked reduction in these statistics, i.e. from 12.6 million in 1998 to 4.98 million in 2009-2012.

The Indian legal system has addressed and defined a total of 64 Industries as hazardous and therefore, it is a criminal offence for any employee to employ children in these hazardous industries. Notably, Constitution of India prohibits child labour in hazardous industries (but not in non-hazardous industries) as a Fundamental Right under Article 24.

LEGAL ACTS OVER THE YEARS

The Factories Act of 1948: This act states all such activities as illegal and against the law which involve children below the age of 14 years being employed in any factory.

The Mines Act of 1952: In light of the fact that mines are considered amongst the most unsafe environment to work in, this act prohibits the employment of children below 18 years of age in a mine.

The Juvenile Justice (Care and Protection) of Children Act of 2000: According to this act, an employee who employs a child below the age of 18 years in a hazardous environment or under bondage, is considered a criminal, and whom so ever indulges in such activities, would be trialed and punished with a prison term.

The Right of Children to Free and Compulsory Education Act of 2009: The law necessities and mandates free and compulsory education for all children aged 6-14 years. This act also mandates a total of 25 percent of seats in each private school to be reserved and allocated to children belonging to disadvantaged groups and to physically challenged children.

 

The part III of The Child Labour Act of 1986 declares regulations of conditions of work of Children as follows:

HOURS AND PERIODS OF WORK

(1) No child shall be required or permitted to work in any establishment in excess of such number of hours as may be prescribed for such establishment or class of establishments.

(2) The period of work on each day shall be so fixed that no period shall exceed three hours and that no child shall work for more than three hours before he has had an interval for rest for at least one hour.

(3) The period of work of a child shall be so arranged that inclusive of his interval for rest, under sub-section (2), it shall not be spread over more than six hours, including the time spent in waiting for work on any day.

(4) No child shall be permitted or required to work between 7 p.m. and 8 a.m.

(5) No child shall be required or permitted to work overtime.

(6) No child shall be required or permitted to work in any establishment on any day on which he has already been working in another establishment.

WEEKLY HOLIDAYS

Every child employed in an establishment shall be allowed in each week, a holiday of one whole day, which day shall be specified by the occupier in a notice permanently exhibited in a conspicuous place in the establishment and the day so specified shall not be altered by the occupier more than once in three months.

DISPUTES AS TO AGE

If any question arises between an Inspector and an occupier as to the age of any child who is employed or is permitted to work by him in an establishment, the question shall, in the absence of a certificate as to the age of such child granted by the prescribed medical authority, be referred by the Inspector for decision to the prescribed medical authority.

HEALTH AND SAFETY

(1) The appropriate Government may, by notification in the Official Gazette, make rules for the health and safety of the children employed or permitted to work in any establishment or class of establishments.

(2) Without prejudice to the generality of the foregoing provisions, the said rules may provide for all or any of the following matters, namely:

(a) cleanliness in the place of work and its freedom from nuisance

(b) disposal of wastes and effluents

(c) ventilation and temperature

(d) dust and fume

(e) artificial humidification

(f) lighting

(g) drinking water

(h) latrine and urinals

(i) spittoons

(j) fencing of machinery

(k) work at or near machinery in motion

(l) employment of children on dangerous machines

(m) instructions, training and supervision in relation to employment of children on dangerous machines

(n) device for cutting off power

(o) self-acting machines

(p) easing of new machinery

(q) floor, stairs and means of access

(r) pits, sumps, openings in floors, etc.

(s) excessive weights

(t) protection of eyes

(u) explosive or inflammable dust, gas, etc.

(v) precautions in case of fire

(w) maintenance of buildings

(x) safety of buildings and machinery.

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