Article 12 of the Convention on the Rights of Child 1989 (CRC) provides a very important right to a child. This article treats the child as an individual for certain purposes. The Article mandates states to assure to the child who is capable of forming his/her own views the right to express those views freely in all matters affecting the child. The views of the child being given due weight in accordance with the age and maturity of the child. The child shall be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child either directly or through representative or appropriate body. This article should be interpreted in harmony with Article 3 of the Convention which provides that the best interest of the child should be the primary consideration in any matter concerning the child. Thus the wishes of the child may be disregarded if they conflict with the best interest of the child. “The two articles have complementary roles: the first aims to realize the child’s best interests, and the second provides the methodology for hearing the views of the child or children and their inclusion in all matters affecting the child, including the assessment of his or her best interests. Article 3, paragraph 1, cannot be correctly applied if the requirements of article 12 are not met. Similarly, article 3, paragraph 1, reinforces the functionality of article 12, by facilitating the essential role of children in all decisions affecting their lives ” Freedom guaranteed under Article 13 to 16 of the convention can only be exercised affectively if the Right of Participation is recognized. The fact that the child is very young or in a vulnerable situation (e.g. has a disability, belongs to a minority group, is a migrant, etc.) does not deprive him or her of the right to express his or her views, nor reduces the weight given to the child’s views in determining his or her best interests. As the Article provides, the rights should be available according to the maturity of the child. The child who is intellectually mature by reason of age or otherwise should have more say in matters concerning him. This is a difficult matter which should be decided on case to case basis. On the one hand we see that some children are very mature and capable of making decisions at the age of 9 or 10 on the other hand it can be difficult for a child to be left responsible for decisions on where and with whom to live and treatment for diseases, on parenthood etc. It will be more helpful to the child to establish a form of joint decision making by imposing a duty on parents to inform children and discuss possible choices and solutions at the level that corresponds with the child’s age and maturity. In matters where courts and other authorities and agencies are involved such as custody and access etc should listen the child according to his/her age and maturity.

Custody, Maintenance and Education
Amongst the aftermath of divorce, the most sensitive and most important one relates to custody, maintenance and education of children. This is a very vital matter affecting the children and parent emotionally, socially and financially.
Under Section 26[1] Hindu Marriage Act, 1955 and Section 38[2] of the Special Marriage Act, 1955 the court is empowered to make reasonable provisions on these matter. The court is invested with the very wide discretion and broad power for the welfare of children. The court may pass any order as it deems just and proper. It can place children into the custody of any parent or to third person keeping in mind the interest of the child. It may give custody to one person and care and control to the other or rescind them at any time. Similarly, order can be passed with regard to maintenance and education of children.
“In its wider meaning the word (custody) is used if it were almost the equivalent of guardianship in the fullest sense ... these include power to control education, the choice of religion, and the administration of infant’s property. They include entitlement to vito issue of passport and to withhold consent to marriage. They include both the personal power physically to control the infant until the years of discretion and the right to apply to court to exercise the powers of the crown as parens patriae.”[3]
In the same case the learned judge said that custody in its narrower meaning means “personal power to physical control). Under English Law the divorce court has power to make “split order” giving custody to one parent and care and control to the other.[4]
“Custody is a dwindling right which the courts will  hesitate to enforce against the wishes of the child and the more so the older is it start with the right of control and ends with little more than advice”[5]
 “Most of the Indian Statutes do not specifically provide for access but of access is part of custody and if the courts have the power to pass order for custody, it has also the power to pass orders for access”[6] The other parent is allowed access so that the child may not lose the society and affection of the other parent.. In deciding the question of access, the interest of the child is paramount as in the case of custody.[7] In a case[8] the Supreme Court laid down that   during long vacations the father would be entitled to take the child with him from the mother home in case the child was with her or from the boarding school [where the child was educated and living] with him and keep it with for a period not acceding one month in a year.
“We direct the family court to ensure that visitation rights are fixed in such a manner that the child gets to know and love his father. A child has a right to the affection of both his parents and the family court shall ensure that visitation rights are granted in such a manner,”[9]
With regard to education, recently the Calcutta high court[10] held that parents should not force their children to pursue subjects without taking into consideration their capabilities and wishes.
Guardianship
Till 1999, The general  view was that the guardianship vests with the father so long he is alive as he is the guardian of his minor children under Hindu  Law. This was due to the literal interpretation of the word ‘after’ in Section 6[11] of Hindu Minority   and Guardianship Act, 1956.
In 1999 in a landmark case[12] the Supreme Court observed   that a key point was interpretation of the word “after”; and that:
“the word did not necessarily mean after the death of the father, on the contrary, it [means]  ‘in the absence of’ be it temporary or otherwise or total apathy of the father towards the child  or even inability of the father by reason of ailment or otherwise.”  “Ascribing the literal meaning to the word ‘after’ cannot arise having due  regard to the object of the Act and the constitutional guarantee of gender equality, since any  other interpretation would render the statute void which ought to be avoided.”
In this case The petitioner was  married to respondent   and had a son.
The petitioner applied to the Reserve Bank of India (RBI) for 9%  Relief Bond to be held in the name of the son indicating that she, the mother, would act as  the natural guardian for the purposes of investments. RBI returned the application advising the petitioner either to produce an application signed by the father or a certificate of guardianship from a competent authority in her favour to enable the bank to issue bonds as requested.
The court directed the Reserve Bank to formulate appropriate methodology in the light of its observations. The court  also instructed the District Court, Delhi where divorce petition was pending,  to take account of his comments  when considering custody and guardianship of the minor child.
Prior to this judgement also the Supreme Court in a case [13] allowed the mother to act as guardian.   In this case,  although the father was alive, he was not taking any interest in the affairs of the child. In that case the mother was ruled to be the natural guardian of her minor daughter.
“The judgment in Gajre v Pathankhan considered that:
“… a rigid insistence of strict statutory interpretation may not be conducive for the growth of
the child, and welfare being the predominant criteria, it would be a plain exercise of judicial power of interpreting the law so as to be otherwise conducive to a fuller and better development and growth of the child.”
 However as said in the above judgement, The court  allowed the mother to be the natural guardian:
“… but without expression of any opinion as regards the true and correct interpretation of the
word ‘after’ or deciding the issue as to the constitutionality of the provision as contained in Section 6(a) of the Act of 1956.” 
 It is worth mentioning here that Article 18[14] of the convention recognizes the concept of joint guardianship. It provides that  Parents or the legal guardians as the case may be has the primary responsibility for the upbringing and development of the child. The best interest of the child will be their basic concern. This principle does not find place in Indian statute books. In every community the father has been given preferential rights as compared to mother.
Adoption
Adoption will be carried out only by a competent authority who will ensure the adoption is permissible. Inter-country adoption will be permitted as an alter form of care only if that care cannot be provided for in the child’s own country. Ensure that inter-country adoption does not result in financial gain, and that both national and international adoption is held to the same safeguards and standards.
Clause 4 and 5 of Section 9 Hindu Adoption and Maintenance Act provide that where the parents of the child are dead or renounced the world or have abandoned the child or has been declared to be of unsound mind by the court or where the parents are not known, the guardian of the child may give him/her in adoption.  While granting such permission the court should be satisfied that for the welfare of the child due consideration being given to the wishes of the child. It should be noted here that in case of adoption by mail[16] and adoption by female[17] There is no specific provision to take into account the wishes of the child who is given in adoption.
The Juvenile Justice (Care and Protection of Children) Act, 2015 has added A new chapter on adoption.  The purpose is to facilitate   the adoption of orphaned, abandoned, and surrendered children. The current Central Adoption Resource Authority (CARA) has been given the status of a statutory entity to enable it to fulfill its duty more effectively to streamline adoption procedures for orphaned, abandoned, and surrendered children. Chapter (VIII) on adoption contains extensive requirements on adoption as well as penalties for failing to follow the procedure. Timelines for both in-country and inter-country adoption have been shortened, including declaring a child legally free for adoption. A single or divorced individual can adopt under the conditions, but a single male cannot adopt a girl child.
Section 61 of the Act   provides inter alia that  Before issuing an adoption order, the court shall satisfy itself that ––
(a) the adoption is for the welfare of the child; (b) due consideration is given to the wishes of the child having regard to the age and understanding of the child. and  Central Adoption Resource Authority (CARA) has formulated guidelines for adoption. The Indian prospective adoptive parents irrespective of their religion, if interested to adopt an orphan or abandoned or surrendered child, shall apply for the same to Specialised Adoption Agencies through Child Adoption Resource Information and Guidance System by filling up the online application form, as provided in Schedule VI, and uploading the relevant documents thereby registering themselves as prospective adoptive parents. The prospective adoptive parents shall select a Specialised Adoption Agency nearest to their residence for Home Study Report in their State of habitual residence. The Home Study Report of the prospective adoptive parents shall be prepared through the social worker of selected Specialised Adoption Agency and in case they are unable to conduct Home Study Report within stipulated time, they shall take the assistance of a social worker from a panel maintained by the State Adoption Resource Agency or District Child Protection Unit, as the case may be. Such  agency etc   shall counsel them  during the home study. The Home Study Report shall remain valid for three years and shall be the basis for adoption of a child by the prospective adoptive parents from anywhere in the country .[18]