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Child Custody Laws in India & The "Best Interest" Principle

Author: Oishi Sen, Student, Symbiosis Law School, Hyderabad, India

ABSTRACT Recent years have seen a gradual increase in the trend of divorce. Matters of divorce are followed by legal battles for custody of the child(ren). In majority of the cases, parents fail to come to a mutual consensus as to who should be entitled to get the custody and if the other parent should have access to the child at all. Amidst these legal battles between two adults, innocent children have to bear the brunt of it. They might end up becoming pawns and collateral damages. Here is where the role of the judiciary becomes very important. When Courts are approached with these matters, it is the courts that hold the future of the child in its hands. Therefore, the courts need to ensure that children, who are the future, are not scarred for the rest of their lives and it is then the courts’ responsibility to ensure that they are moulded by safe hands. Legal provisions in India, as well as International statutes, have cited that utmost importance must be given to the child’s welfare and while reaching any conclusion, the child’s “best interest” must be of paramount consideration. This paper deals with these legal provisions in India, International statutes, cites what are the rights of the child in matters of child custody and if these rights are substantive or procedural. Additionally, the paper addresses the emotional and psychological turmoil a child has to go through due to circumstances which are beyond its understanding and if the courts can do justice to a child in the true meaning of its term.

Keywords: Child custody, Best interest principle, Child welfare, Rights of the child, Effects on child’s psychology.

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