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Father's Custody Rights in India

07 Nov 2020 12:00 AM

The issue of ‘Child Custody’ crops up during divorce proceedings or judicial separation; it becomes an important issue to be decided by the courts. It refers to the process of controlling, caring and maintenance of the child less than 18 years of age by the custodial parent (the rights have been granted by court) under set parameters such as financial security, understanding with child, lifestyle, etc. The prime rights of nurturing the child with respect to education, development, medical, emotional, physical, etc. lies with the custodial parent while the non-custodial parent only holds the right to access and meet the child. 

In innumerable cases, both the parents are provided with access to the child, but the physical custody of the child is usually granted to one parent. The Family Courts while deciding on this need to keep the best interests of the child as of paramount importance.

What is the Definition of Legal Custody?

In a family law context, “Legal Custody” is a type of Child Custody that grants a parent the right to make important, long-term decisions regarding their child or children. This may include aspects of the child’s upbringing including:


      Medical and dental care

      Religious upbringing

      Financial decisions

Types of Child Custody in India:-

The Judiciary in India, in a number of innumerable judgments, has held the view that the best interest of the child in Child Custody cases, needs to be given utmost importance, surpassing all the legal provisions laid down. 

The court grants the right to child custody either to one or both the parents under certain rules and regulations. Evaluating the sensitivity in this matter, the Indian Law allows parents to seek Child custody as per its below mentioned forms, They are:

Physical Custody: In physical custody, a child lives with the custodial parent and undertakes all the day to day activities. Joint Physical Custody: In joint physical custody the child lives with both the parents for a significant time period. In such a set-up, both the parents have equal rights on their child. Sole Custody: In Sole custody, the entire right to live with the child lies in the hands of one parent only. This often happens in cases where in the other parent is abusive, instable, violent or incapable in nature. Third Party Custody: In third party custody, none of the biological parents have any right on the child. Instead, the child custody is granted to the third person by the court. 

What the Legislation has a say about Child Custody?

As per the Hindu Minority and Guardianship Act, 1956 the Hindu child below the age of 5 years shall be kept under the custody of the mother as till this age it is only the mother who can give proper emotional, moral as well as physical support to the child.

The custody of a boy or an unmarried girl below the age of 18 years and above the age of 5 years shall be given to the father of the child as he is considered to be the natural guardian and only after his death, the custody shall be given to the mother.

In case the child is illegitimate then the custody shall be with the mother itself.

If the parents are not willing to take the custody of the child or if the court thinks that for the welfare of the child it would be better if he is not kept under the guidance of the parents then even a third person may be allotted the custody of a Hindu child. In this case usually, the grandparents are that paternal or maternal will be preferred to get the custody of that Hindu child if they are interested.

If neither the parents nor any of the close relatives of the child are initiating to take the custody of the child then the court by itself shall find an appropriate person who could take the custody of the child.

Which Parent Can Be Granted Legal Custody?

At the present time, most courts attempt to grant both parents equal rights with regards to legal custody. This is to help the child interact with both parents rather than just one. However, in some cases, the court may grant only one parent legal custody. This is especially true where one of the parents is deemed unfit to make decisions on behalf of the child.

When determining which parent should be granted legal custody, the courts may consider many different aspects, including:

1.    The parent’s mental, physical, and emotional ability to make legal decisions on behalf of another person

2.    The relational history between the child and the parent

3.    Whether there has been any history of abuse, neglect, or other violations

4.    The arrangement between the parents regarding distribution of physical custody

5.    Wishes of the minor child, if he can form opinion on his own.

6.    Financial status of both the parents.

As with any child custody decisions, legal custody determinations are made with the “best interests of the child” in mind. This means that the needs of the child take preference over any personal desires or intentions of either parent.

Child Custody for Fathers: How can a Father Get Full Custody of His Child?

When it comes to father custody rights, various questions can arise.

Custody battles for fathers can sometimes be challenging. While most courts have discarded older notions that the mother is automatically the primary caregiver, many mothers and other persons in society still hold these types of notions, but there are some situation when a father can claim custody or even full custody of child by proving any of the following reasons given under. 

Father Gets the Custody In The Following Manner:-

In India, it is believed that no one can be a better caregiver than a mother. Unfortunately, it is not true all the time.

Though while giving the custody the mother is given the first priority, the father can get it by following ways:

1.     If the mother is willing to give up the custody of the child, then the father may get custody.

2.     If the mother is not mentally stable, the father is the next person to get custody of the child.

3.     If the child is of 13 years or more and expresses his wish to stay with the father, the Court shall grant it to the father.

4.     In case the mother is of an immoral character, which may affect the child as well, the father gets the custody.

5.     If the father can prove the financial incapacity of the mother which shall in future affect the upbringing of the child and also prove his financial capability to take good care of the child. 

6.     If the father can prove that the background of the mother has been in dark and that if the child will stay with the mother it will prove to be fatal to the upbringing of the child or shall affect his mental and physical growth. 

7.     If the mother is a convict herself, the custody of the child shall thereafter go to the father. 

Although the above – mentioned points are few of which are used in the court to get custody. The same is not exhaustive and can vary depending from case to case on the basis of facts and circumstances.

Can a Father Fight for Child Custody If He Is Not on the Birth Certificate?

Whether or not a father’s name is listed on a birth certificatecan have significant impacts on their custody rights. In most cases, if the person’s name is listed as the child’s father on their birth certificate, courts will automatically conclude that they are the child’s legal father. They will then be granted various custody rights as the legal father of the child. 

In many cases, even if the person is not the child’s biological father, if their name is listed on the birth certificate as their father, courts may still grant them custody rights. They may also impose various duties on them, such as the duty to pay child support if this arises in the future. 

If the father’s name is not on the child’s birth certificate, they may often not be granted any custody rights over the child, whether partial or full custody. If they wish to gain legal rights, and they are the biological father of the child, they may need to undergo a paternity test to prove to the court that they are the biological father. 


The law governing Child Custody cases in India, broadly, falls under following Act :-

1.     Guardian and Wards Act, 1890

2.     Section 26 of Hindu Marriage Act,1955

3.     Hindu Adoption & Maintenance Act,1956

4.     Section 38 of Special Marriage Act, 1958

5.     Hindu Minority and Guardianship Act, 1956

6.     Custody Under Muslim Law

7.     Custody Under Hindu Law 


Child custody cases are filed in the jurisdiction of the family court/competent court where minor child ordinarily resides. For example, father is living in Mumbai. Mother is living in Delhi along with minor child. If father wants to file Child Custody, he has to file the same only in Delhi. Thus, family court or concerned competent court shall have the exclusive jurisdiction over the child custody to the exclusion of all other courts.


A petition for child custody or declaration regarding appointment of natural or legal guardian of minor starts child with the filing of the petition by the spouse seeking child custody  application for Interim or Temporary custody as well as Visitation Rights.

Custodial parent is required to give response to the petition following which evidence are led by both parents. After closure of evidence of by both parents and their respective witnesses, if any, follows with final arguments and consequent judgement.

As stated above in certain situation and exigencies a writ petition under article 32 of the Constitution of India can be filed in the Supreme court or a write petition under article 226 of the Constitution of India can be filed. 

Key points:

Child custody cases are emotionally taxing for parties, concerned counsels, as well as the Judge(s).

Generally, the age of majority is eighteen years and in some cases it is twenty-one years.

Nowadays courts often take the helps of experts such as counsellors, psychologist or other specialist dealing with issues of child custody.

It is extremely interesting to note that all judgements that attain finality bound parties with the final outcome. However, the decision or the judgements of child custody cases are never final. It is a departure from the general law. To explain further, Custody of Child has been awarded by judgement or by mutual consent to one of the parent. However, the welfare of the child is prejudiced by the acts and omission of the custodial parent .


For a father, custody can be difficult to win, even though the courts do not discriminate against fathers. Whether you are a father going for full custody or joint custody, you should be prepared for a difficult child custody battle, especially if the child's mother is also fighting for custody. Consider the following tips to help a father get custody.

1.    Pay child support payments within time.

2.    Build a strong relationship.

3.    Give respect to the child and as well the mother.

4.    Maintain accurate records.

5.    Attend important school and social gatherings.

6.    Make sure everything you are doing is for providing good life to your child.

Children are mostly attached with their mothers, so when a father wants to have a custody or full custody he must think about his child’s wish and definitely what is good for their children’s life because custody battels are already traumatic and exhausting experience for a child to go through, so the first priority of a father should be to make sure that everything he is doing for their children is to provide happiness and good life.




If a marriage breaks down and ends up in 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:
Safe-keeping of the child
Ethical upbringing of the child
Good education to be imparted
Economic well-being of the guardian

Where Does A Minor Child Go After A Divorce?

The mother and father both have an equal right to the custody of a child. Who gets the custody of the child, however is a question which the court decides upon. While the statutes are conflicting when it comes to personal laws as opposed to secular enactment in the form of The Guardian and Wards Act, 1890, the court of competent jurisdiction strives to strike a balance between the two, all the while holding the welfare of the child as the paramount importance. However, just because the custody of a minor has been awarded to one parent, it does not mean that the other parent cannot see or be in contact with the child. The courts in India are very strict to ensure that a child gets the affection of both the parents. The other parent gets visitation rights, the conditions of which are determined by the court.

Types Of Child Custody Arrangements In India

Primarily, a court of competent jurisdiction in India orders the custody of a child in the following three forms:

Physical Custody

Physical custody when awarded to a parent, implies that the minor will be under the guardianship of that parent with visitation and periodical interaction with the other parent. The aim behind such a custody award is that the child lives in a safe and fulfilling environment but is also not deprived of the affection of the other parent during his formative years.


Joint Custody

Joint custody of a child does not mean that the parents will both live together because of the child even though that what Indian courts believe is best for the welfare if a minor. It simply means that both the parents will take turns keeping the child in their custody. The rotation of a child between the parents’ custody may vary from certain days or a week or even to a month. This not only benefits the child as the affection of both the parents is not lost and the parents also get to be a part of their child’s life in those young years.


Legal Custody

Legal custody of a child differs from physical custody in more ways than one but the fundamental difference between the two is that legal custody does not necessarily entail having the child with you or being with your child at all times. Legal custody of a child basically means that the parent granted the legal custody takes every decision for the child. From where will the child study and what doctor will the child be treated by is part of legal custody. In most instances, courts grant legal custody to both the parents together but if the divorce is messy and the parents are, apparently, never going to agree with each other, the court grants the legal custody of the child to one parent.

 How Does One Know That What Type Of Custody Has Been Granted?

Unless and until the order of the court specifically mention conditions similar to the ones discussed above, the parent who is awarded the custody of a child is not just awarded the physical custody but also the legal custody. Any other type of custody will be specifically mentioned in the order of a court and made clear to both the parents.

Who Can Claim Custody Of A Child?

The custody of a child can be primarily claimed by either the mother or the father. In case either of the two are deceased or not in the picture because of operation of any other law, the maternal and paternal grandparents, any other relative(s) of either of the parents strictly out of compassion towards the child can seek custody of the child. The Court can also appoint a third person to be the guardian of the child.

Who Has The Priority Claim To The Custody Of A Child?

The Hon’ble Supreme Court and other courts in India have reiterated time and again that in the proceedings for custody of a minor, the welfare of the minor is the only consideration, irrespective of the claims of the parties to the custody.

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