Child Custody

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Child Custody


If a marriage breaks down and ends up in the separation of a couple, the person(s) who suffers the most is the child or children born out of the marriage. The Indian Law, while keeping in mind the parents’ right to the custody of a child, holds the welfare of the child as the most important factor of consideration when deciding upon who gets the custody of a minor child.

What Are The Factors That Constitute “Welfare” Of A Child

Welfare of the child, broadly, includes the following factors:

  1. Safe-keeping of the child

  2. Ethical upbringing of the child

  3. Good education to be imparted

  4. Economic well-being of the guardian

What child custody right is:

Over the years, there is a major shift in the laws and legal pronouncements governing the custody of a child. Earlier, the child custody right used to be considered as the 'right of spouses', however, lately the courts have begun to consider it as the 'right of a child' and not that of spouses.

Legislations Governing Child Custody Under Different Laws In India:

India being a secular nation has different religions to follow and thus every religion has its personal law set for child custody which determines the process by which a parent seeks the custody of their child.

1) Custody Under Hindu Law:

The laws under Hindu Law namely:-
Section 26 of Hindu Marriage Act 1955, Section 38 of Special Marriage Act 1954 and,
Hindu Minority and Guardianship Act 1956 mentions the rules and regulations set for seeking child custody.

a) Section 26 of Hindu Marriage Act 1955

It deals with the maintenance, caring and education of child and only when both the parents follow Hindu religion, the custody of child gets validated. Under this act, the court can pass orders, judgements, amendments, etc. at any point of time in respect to the maintenance of child and dispose of the pending decree within the 60 days from the date of service of notice.

b) Section 38 of Special Marriage Act 1954

This act validates the custody of the child in case both the parents belong to different religions or have undertaken a court marriage. Under this act, the court can pass orders, judgments, amendments, etc. at any point in time in respect to the maintenance of the child and dispose of the pending decree within 60 days from the date of service of notice.

c) Hindu Minority and Guardianship Act 1956

This act allows only biological parents to seek the custody of their minor child provided that he/she is a Hindu.

2) Custody Under Hindu Law:

Under Muslim law, only the mother has the right to seek his/her child custody as per Right of Hizanat until she is not found guilty of any misconduct.

# The custody of a child under Muslim law is with the mother until the child has attained the age of 7 years for a boy and until she has attained the age of puberty or majority for a girl.

# The custody of the child remains with the father until the boy has attained the age of 7 years and the girl has attained the age of majority or puberty because the father is considered to be the natural guardian.

3) Custody Under Christian Law

The Christian religion needs to follow the laws and reforms set under Section 41 of the Divorce Act, 1869 for the Child's custody. Also, in addition to this law, Section 42 and 43 of the same holds the right to decide upon the Child's custody after the judgment to separation has been passed. The child is given to a person who server better and is proved to be a better guardian for the child and the claim can even be denied if the court finds that both the parents are incapable of giving a proper atmosphere to the child.

4) Custody Under Parsi Law

The custody of a child under Parsi law is dealt with the provisions of the Guardians and Wards Act, 1890. Its main aim is the welfare of the child and can put anything to stake to make sure that the welfare of the child is confirmed.

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.

Types of Custody

  • Physical Custody-When the court declares either of the parent to be the custodial parent and the child lives with them then onwards.
  • Joint Custody– When both the parents come to an agreement on taking care of the child and the legal custody lies with both but the physical custody is taken over by one of the parents who is the primary caretaker of the child.
  • Legal Custody-When the decision making for important decisions of the child such as educational and religious upbringing, financial support, and medical care is generally shared among the parents, and the expenses of the child are borne by both of them.

Court’s Role In Custody Matters:

The court is parens patriae, meaning, the court is the ultimate guardian of the child. And, therefore who will the child stay with, what will be the terms of access, how will the child's living and educational costs be met, are all amply protected by law. Not only this, even the terms of custody, access, and maintenance can be altered by the court even after passing of final judgment and order. Reason: For the Courts, ‘Child's best interest is of paramount consideration’.

Guardian & Ward Court’s Powers:

Guardian and Ward Courts have basically three powers, namely:

  • Powers to grant Interim Custody to one of the spouses
  • Powers to grant Visitation Rights to the other spouse to whom physical custody of the child is not entrusted.
  • To grant “Permanent Custody” of the child.

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.

Child Custody under Mutual Divorce

When a couple is separating through a mutual divorce, they have to decide regarding the custody of the child among themselves. They have to determine beforehand who gets the physical custody and who gets the visitation rights. They can also go for joint custody or shared parenting of the child in case of mutual divorce. While deciding about custody the parents have to apply the principle of the best interest of the child and the agreement between the parents must be subject to the best interest of the child.

Custody of a Child under Contested Divorce

In case of a contested divorce, the decision regarding the custody of the child becomes a matter of the court to decide. The court decides the custody taking into consideration the best interest of the child. The decision of the court on the custodial rights also depends upon the facts and circumstances of the case along with the welfare of the child in case of a contested divorce.

How to File for Child Custody?

The procedure to file a case for child custody has been listed below:

  1. Drafting the Application: An application has to be drafted by the concerned party with the help of a child custody lawyer stating the reason as to why the custody of the child should be granted to the applicant.
  2. Filing the Application: The application has to be filed in a District Court having jurisdiction over to hear the matter.
  3. Appearance:After the application has been filed the hold a hearing where both the parties will appear and would present their case.
  4. Final order:Once the final arguments of both the parties are heard the court will decide upon the matter.

Grounds under which Child Custody is denied

There are several reasons on which the court denies child custody. Some of them are as follows:

  1. Parent not in custody is not paying child support
  2. Child abuse
  3. Drug or alcohol abuse
  4. Violent mental illness
  5. Incarceration
  6. Wish of the child

Duration of a Child Custody case

In case of mutual divorce, an application moved for child custody would be decided within 6-8 months from the date of filing of the application. However, in case an application for child custody has been moved in a matter of contested divorce then a fixed time cannot be told as it could take a minimum of 2.5 to 3 years to grant custody.

Maintenance of the Child after Custody

Once the custody of the child has been granted to one of the parents and the divorce proceedings are over, it is the duty of the parent to maintain the child and act in the best interests of the child. Unless exceptional circumstances have been called for one parent to exclusively provide maintenance of the child, both the parents will be required to maintain the child. However, in such a case the other parent will not be precluded from being a part of the child’s life. The maintenance court will have the right to decide upon any disagreement between the parents with regard to the maintenance.

What is Visitation Right Orders:

Visitation Right is granted by the courts both, during the pendency of the case, as also while passing the final judgment and order. Visitation right is granted on the sole premise that the development of a child is possible only after the child is showered with the love and affection of both- the father and the mother.
Such visitation rights and access to the non-custodial parent could be daily, weekly, fortnightly, or monthly. It could be just day access, overnight access, weekend access, vacation access, and on special days, like school events, etc. It could also be free access with no fixed schedule.

Writ of Habeas Corpus for restoration of Custody

In child custody matters, the writ of Habeas Corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law, Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42.

In child custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in the exercise of extraordinary jurisdiction on a petition for habeas corpus, Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42.

Effect of remarriage on custody

Second marriage of either of the parent is a factor to be considered while granting custodial rights, but second marriage does not disentitle him/her to the custody of his/her children, Athar Hussain v. Syed Siraj Ahmed, (2010) 2 SCC 654.

Our Services for Child Custody case

Our expert can help you perform the following functions:

  1. Drafting the application
  2. Filing the application on your behalf
  3. Representing you in the court
  4. Preparing arguments
  5. Helping you prepare yourself with the cross-examinations
  6. Taking care of the paperwork
  7. Making a plan of action
  8. Guiding you with the complicated court procedures.


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