Child Custody Laws in India

The child or children born out of the marriage suffer the most if a marriage fails which leads to the separation of the parents. Under Indian law, the well-being of the child is given priority when determining who should have custody of a minor, even though the parent’s entitlement to custody is still taken into account. A parent would give anything for their child. Every parent wants to keep their child with them.

Child custody is one of the equal rights each parent has over their child. A parent has the legal right to have their child live with them, which is known as "child custody." It concerns a parent's right to make decisions on a child's upbringing, education, and health.

What is the Meaning of Child Custody?

In India, the child is legally owned by both parents. This indicates that the mother has the right to raise the child, to provide for its needs, and to have contact with the child. The father does not have the right to visitation but is equally entitled to raise and care for his children. Which parent is fitter or better suited to care for the child is not a factor in the court’s decision about custody. It would be a tie between the two parents in this situation. society's perception of women as the weaker gender. They believe moms should care for children while dads should be out working and supporting their families financially; hence, they would prefer to grant mothers legal powers over children.

Types of Custody

Following three are the major types of child custody −

Physical Custody

When a parent is given physical custody, it means the child will live with them and have visitations and regular contact with the other parent. The goal of such a custody arrangement is to ensure that the child not only lives in a secure and fulfilling environment but also receives the other parent's love during his formative years.

Joint Custody

Although Indian courts believe it is what is best for a minor's welfare, joint custody of a child does not entail that the child's parents will live together. Simply put, it means that the child will live alternatively with both parents. A child may alternate between a parent's care for a few days, a week, or even a month. This is advantageous for both parents as well as the child because it preserves their bond and allows them to participate in their child's early years.

Legal Custody

There are many ways that legal custody of a child differs from physical custody, but the main distinction between the two is that legal custody does not always include keeping the child with you or being there when they are with you. Legal custody of a child essentially implies that the parent who has been given legal custody makes all of the child's decisions. Legal custody includes decisions about the child's educational institution and physician. Most of the time, courts provide legal custody to both parents jointly, but in complicated divorce cases where it seems like the parents will never agree, the court gives legal custody to one parent.

How to Know What Kind of Custody Was Granted

The parent who is granted custody of the child receives both physical and legal custody as long as the court's order does not specifically state the restrictions mentioned above. If another type of custody is granted, it will be specified in the court's ruling and made clear to both parties.

Who Gets Custody of the Children

Which parent will have custody of the kids is decided by the court. It's crucial to remember that the court will only make this decision with the child's best interests in mind. Both parents typically have a big role in parenting their children in India. Even though a parent in India has been given custody of a child, they are still able to teach them things and take care of them. There are some situations where having one parent have custody over the other would be better. These situations include abuse or neglect, domestic violence, and/or when one parent is unable to meet the needs of their child.

Laws Governing Child Custody in India

India has numerous different laws to address social issues because there are individuals from numerous ethnic communities there. In certain circumstances, national laws can conflict with individual laws.

Following a parent's divorce, the child's custody is governed by a number of different laws −

  • Hindu law’s custody rights − Hindu law regulates marriage and divorce. The transfer of custody rights upon divorce is governed by the Hindu Minority and Guardianship Act of 1956, the Hindu Marriage Act of 1955, and the Special Marriage Act of 1954.

  • Section 26 of the Hindu Marriage Act, 1955 − Only if both parents are Hindus are provisions made for a child's education and support in Section 26 of the Hindu Marriage Act. Within 60 days after the day the notice was served, the orders may be issued at any time and supersede the pending decree.

  • Section 38 of the Special Marriage Act, 1954 − This Act recognizes the right to custody of the child even if both parents practice different religions or have established a legal marriage. This Act states that the court may issue orders, judgments, revisions, etc. regarding child support at any time and may decide whether to issue the final decree within 60 days after the date of service.

  • Hindu Minority and Guardianship Act 1956 − The provisions do not take into account the custodial rights of third parties. The provisions of this Act only apply to the biological parents if they are Hindus and solely to them.

Child Custody as Per Muslim Law

The right to a child's custody is known as "hizanat" in Muslim personal law and can be used against anyone, even the father. A Muslim child's mother has custody of them up until they are seven years old for boys, and until they reach puberty or the age of majority for girls. The father has custody of a boy once he turns 7 and of a girl, after she reaches majority or puberty since, in accordance with Islamic law, the father is regarded as the child's natural guardian. The right granted to the mother in a custody dispute is not unqualified; it only exists if it is in her children's best interests. Thus, Islamic law also places a priority on children's care.

Child Custody as Per Christian Law

The courts are authorized to make decisions about the custody, upbringing, and support of Christian children under Section 41 of the Indian Divorce Act, of 1869. The court has the discretion to decide, keeping in mind the child's welfare and best interests. If either parent is unable to provide for the child's sufficient opportunity to develop both mentally and physically, the court may even refuse custody to both parents.


India has a long history of nurturing and strengthening familial ties. Children are seen as a blessing by the mother and father in Indian culture. Our culture has a strong foundation for the idea of equally dividing parental responsibilities When parents separate, child custody is still one of the most delicate and complicated matters. As you can see, custody is mostly determined by the judgments of the judges.

There have been many disputes between the many religious laws and the uniform laws passed by the state. It doesn't matter what perspective you take on the legislation. The futures of children shouldn't be jeopardized. The well-being of children and social security are the two key issues that need to be addressed when resolving various laws. All legal difficulties must be addressed before being resolved.

Frequently Asked Question

Q1. At what age can a child can decide custody in India?

Ans. According to the Guardians and Wards Act of 1890, a child has the right to select custody when they reach a certain age, which is 9 years (GAWA).

Q2. Who has more rights over a child?

Ans. Equal custody rights are granted to the mother and the married father. The father has a right to joint custody of the child until a court judgment specifies otherwise. If a child is born into a marriage, the father is automatically granted parental responsibility.

Q3. How can a mother win full custody?

Ans. If the parents are unable to come to an agreement regarding joint or sole guardianship, the court will decide who will have primary custody of the child. If the parents cannot agree, the court will typically ask both of them what they want.

Updated on: 31-Mar-2023


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