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10 Nov 2020 12:00 AM


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:

⦁Good education to be imparted

⦁Safe-keeping of the child

⦁Economic well-being of the guardian

⦁Ethical upbringing of the child


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 five forms:


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.


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.


Sole Custody

Sole custody is a child custody arrangement whereby only one parent has custody of a child. In the most common use of the term, sole custody refers to a context in which one parent has sole physical custody of a child.


Third party custody

In some custody situations, it is possible that the child/children will not remain with either of their natural, biological, parents, but instead custody is awarded to a third person Generally speaking, third-party custody occurs when one of two options occur.

⦁The biological parents do not want custody of the child/children.

⦁The biological parents are incapable of caring for the child/children.


Legal Provisions in India for Child Custody:


The Guardians and Wards Act, 1890 is the universal law pertaining to issues involving child custody and guardianship in India, regardless of the child’s religion. However, under secular principles, India also sanctions laws pertaining to different religions.


Custody under Hindu Law:


The Hindu Laws are applicable only if both the parents are Hindus. The reforms and regulations set for gaining custodial rights under the Hindu laws are prescribed in three different acts:


Section 26 of Hindu Marriage Act, 1955 bestows the authority of passing interim orders, judgments, amendments, etc. with respect to the child’s maintenance and can dispose of the pending decree within 60 days from the date of service of notice of the court.


This act deals with the maintenance, education and caring of child and validates the child’s custody if and only if both the parents follow Hindu religion. Under  this act, the court can any point of time pass interim orders, judgments,  amendments, etc… with respect to the child’s maintenance and can dispose of the  pending decree within 60 days from the date of service of notice.


Hindu Minority and Guardianship Act, 1956 declares that only biological Hindu parents have the rights to seek the custody of their minor child, step parents are not given the right to seek the custody of their minor child only if he/she is a Hindu.


Section 38 of Special Marriage Act 1954:  The act validates the child’s custody if both the parents belong to different religions or have undertaken a court marriage. Under this act, the court can  any point of time pass interim orders, judgments, amendments, etc. with respect  to the child’s maintenance and can dispose of the pending decree within 60 days  from the date of service of notice


Custody under Muslim Law:


According to the Muslim law, only the mother has sole custody of the children under the Right of Hizanat unless she is proven guilty of misconduct. The father is given the Right of Hizanat only in the absence of an able mother.

Certain general principles adopted for custody of a Muslim child are –


Under the Shia law, a mother's right to the custody of her minor children extends until a son is two years old, and the daughter attains the age of seven. 


Under Hanafi law, custody of a child is with the mother till he attains the age of 7 in case of a boy; and till she attains puberty in case of a girl.


The mother's right of custody continues even if she is divorced but in case of remarriage, the custody belongs to the father.


The consent of the child is taken into consideration if he is held to be able to understand his interests. Further, such consent has to be cross-checked so as to identify there’s no element of tutoring present. In case there is, the consent of a child has to be disregarded.


The custody of a boy above the age of 7 and a girl who has attained puberty is transferred to the father who likes in case of Hinduism is considered to be the natural guardian.


The above rules are subject to certain exceptions wherein certain people are denied custody irrespective of their gender. These rules are:


a person who possesses a bad moral character;


a person who has ceased to be a Muslim and thereby converted to any other religion;


a person who does not have a sound mind;


the doctrine of ‘best interest of the child’ applies here also and a person who cannot take proper care of the child is not entitled to the custody;


a woman who has married within prohibited relationships.


Custody under Christian law:


There are no prescribed laws for child custody in the Christian laws but the issues are sorted by Section 41 of the Indian Divorce Act, 1869.


Reforms and laws set under Section 41 of the Divorce Act 1869. In addition to this, Section 42 and 43 of the same act hold the right to decide upon the child’s custody once the judgment with respect to separation or divorce has been passed.


The couples, however, have an option of choosing to be protected under the Special Marriages Act. Section 38 of Special Marriages Act, 1954 validates the child’s custody in cases where the parents belong to different religions or have taken a court marriage and explains the powers of the court over providing judicial custody.


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 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.


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 Will Get The Custody Of A Minor If The Mother Is In A Weaker Financial Condition As Compared To The Father But The Father Has Remarried And Has Kids?

The Mother of a minor cannot be discarded as the guardian just because she earns less than the father. The father has to provide for the child’s maintenance in such a case as it is a well-established principle of law that a step-mother has primary obligation of affection towards her own children and the father would be at work all day, and hence, the mother would be the better guardian for the welfare of the minor child.


What If The Child Is not A Citizen Of India, But Has Been Brought To India By Either Parent Who Is A Citizen Of India?

While dealing with a case of custody of a child removed by a parent from another country to India in contravention of the orders of the court where the parties had set up their matrimonial home, the Hon'ble Supreme Court has held that a child can seek refuge under the parens patriae jurisdiction of the Courts in India. Further, the Apex Court has noted that India is not yet a signatory to the Hague Convention of 1980 on “Civil Aspects of International Child Abduction”, and Courts in India must consider the question on merits bearing the welfare of the child as of paramount importance.



The consideration of paramount importance in a proceeding for the custody of a minor is the welfare of the child. No legal right, preferential right or any other right holds more importance than the well-being of the child. Any court of law grants custody to that party who can assure the court that the welfare of the child best lies with them.


This article is written by Mr. Parameshwar Bambulge, an Advocate and practising advocate having an experience of 11+ years in handling different legal matters. From his experience he wants to share this beneficial information for the individuals having any issues with respect to their related matters.

For more queries contact:

Mr. Parameshwar Bambulge



Mob: +91 92422 21005

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