Child Custody (Law for the Layperson)

POSTED: May 12, 2010

Perhaps one of the most crucial issues that comes up after getting a divorce is the matter of child custody. In the majority of divorce cases in India, child custody is settled between parents themselves, without the need to go to court. However, if you are among the small number of cases where parents are unable to settle the issue between themselves, then you need to be aware of how Family Courts in India decide on custody issues.

In India, children under 18 years of age are supposed to have a legal guardian. The party who is awarded guardianship by the Court has the responsibility of taking care of the child. In some cases, the parents may share the custody of the child, but only one parent may be given the actual physical custody of the child. The court mostly bases their decisions on the best interests of the child and not always on the arguments of each parent.

(If you are getting a divorce, you may also find this article on maintenance laws in India useful).

Basics of child custody Laws in India

Physical custody means that one parent is held responsible for the child’s basic/daily needs like housing, education and food. But in many cases, the non-custodial parent still has visitation rights.

Although there are some specifications under each personal law, Child custody matters in India are governed by the Guardians and Wards Act 1890 (GAWA), which is applicable to people of all religions in India. Under these Acts, generally, the custody of a small child is given to the mother. Custody of older boys may be given to the father, and of older girls to the mother. However, courts also consider specific personal laws while giving their judgements.

Hindus are governed by the Hindu Minority and Guardianship Act 1956 (HMGA), which follows similar considerations as GAWA. Although the HMGA provides that the father is the natural guardian of the child, the paramount consideration for custody is the welfare of the child. Courts in India have therefore tended to give custody of young children to the mother, on the grounds that ‘children of tender years’ cannot manage without maternal affection.

As per Muslim personal laws, minor children are given to mothers. But after the age of seven years, the mother’s right over the son ends. Girls are given to mothers until they attain puberty. One important aspect of this law is that the conduct of the mother is of great importance, and if that is found ‘objectionable’, she may not be given custody rights. The father has the right to custody after the mother’s term ends. In case of the absence of both parents, the grandparents are offered the custody of the child. Also, as per ‘Shia’ law, if a person ceases to be a Muslim, the child’s custody cannot be granted to him/her.

In the case of Christians, custody issues are handled by the Indian Divorce Act, 1869. Section 41 of the Act has some provisions which state that the Court may pass such orders as it deems proper, including placing the child in its protection.

However, an important point to be noted is that irrespective of the customs or personal laws, any parent who wants custody of a child and cannot reach a settlement has to seek custody separately from the Court. There is never any automatic transfer of a child’s custody to a particular parent.

How courts decide child custody

The courts give their decision based on various aspects that deal with the welfare of the child. These factors include the character of the parent, economic conditions of the parents, any specified ‘will’ of a deceased parent, the moral environment at home, age and sex of the child and so on. Children’s preferences are generally considered after 9 years of age. Some archaic considerations still remain, which means that in case of remarriage of a woman, generally custody is not granted to her while it may be granted to a father who remarries, especially if the second wife cannot give birth.

There are two types of custody which may be granted. One is ‘sole custody’ where only one spouse gets the physical custody of a child. The other is ‘joint custody’ where both the spouses share the custody of the child.

Other key facts about child custody law in India

Custody in India is not a hard and fast issue, and judges decide on a case-to-case basis. It is not always necessary that if you are of unsound economic condition or have some other problems, you will not be given custody. The courts keep in mind the mental satisfaction of the children and their best interests. After a divorce, the husband may be ordered to pay maintenance to the wife, which can also be used to bring up the child.

If you feel that you are capable of taking care of your child, then you must file an application. It is your right to get custody of your child. It is also advisable to meet a good lawyer and work on these aspects in advance. If one of the parents is given custody of the child, the other is granted visitation rights. That means that he/she can meet the child with permission from the custodial parent. It is also possible to request the Court to reconsider its decision after a period of time, especially if the children are not happy.

Other Useful Links

Some links that deal with child custody aspects are:

Legal Service India :

You are not alone : (Support group for divorced women of Indian origin)

(While we try to keep the information here as relevant and updated as possible, law is a complex subject and errors are possible. The information here is therefore not meant as a substitute for legal advice.)

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  1. Mainak ganguly -

    Can my wife keep the custody of her 7 year old boy from her first marriage.Her exhusband claims she cannot

  2. ram meher rohilla -

    at this time we the grandfather n grand mother of our two children-a baby age 3 year and a boy age 5yr(c omplete his 5 yrof age in coming 25 dec,2012,mother of children, lives with his husband outside from our house for the last 4 years till 17/8/2010 (marriage date 17/8/2006) both the children born outside from my house, on 11.3.2010 the insist sthat she will not reside with father-in-law n mother-in-law’s in their house situated in karnal haryana and both quarrelled and she called his parents and ran away by left her both children with his husband, and at that time the age of minor-baby was 5 months, and boy was 2 years,at midnight on road outside house, after some time visa has been received by my son as he has applied with the consent of her wife and his father-in-law(sasur ji and sas ji)n mother -in-law, for united kindom for study purpose,and my son sushil,the husband of mamta, mother of minorsg go abroad on 7/4/2010 bygiving his children with us (dada n dadi)to lookafter them as they are
    very little of age-till date the children of our son are with us, she never see back and never ask and never try to get back her children, she suit a case in rohtak(haryana)court under-domestic violence on our the whole family. In nov,2011 after 1 year and 3 months of time, the lower court of rohtak city (HARYANA)ordered to give cildren custody to mother lives with her parent in Rohtak.,at this time the children with us (with power of attorney by my son ) and we got stayorder from HON’.GUIDE US BLE-HIGHCOURT,CHANDIGARH. now we did not want to give the custody of childern to mother untill the father of child came back from aabroad.

  3. Am a Housewife with a girl child age 4year old, and going through rough time with my husband with regards to the second child(MALE),he and his parents who are financially well-off ,are forcing me to have which i dont want a second child.and now he is asking me to look after myself as in earning my livelihood if i dont bow down to his demands..he is planning to remarry to fulfill his parents wishes. I dont want to let go of my daughters custody. what does this divorce holds for me and my daughter.. He will not let me take my daughters custody. he has warned me of that. Am a educated woman and can stand on my own feet financially but it would take some time for me to get settled, as i will be working again after 4 years.
    Please let me know my rights and about not letting go off my daughters custody.

    • Amit Aggarwal -

      Dear S
      I feel bad for the situationm you are into. Here is what I can advice you:
      Immediately try finding a good divorce lawyer, who will guide you the way ahead. Time lost might eventually make you loose the physical possession of your daughter, your marital family being economically & socially stronger (as mentioned by you). Ideally speaking, don’t seek divorce, rather seek maintenance. Most of us don’t know that for you to demand / expect maintenance, you don’t need to be divorced from your spouse!

      Keep looking for a job meanwhile. Best of luck.

      Regards/ Amit

    • dear sir/madm i an ashwini v got married 3yrs back n nw my husbnd has a affair wit a gal n he is demanding for divorce n he is asking for custody of my baby,but i cant let go my baby with him if he is wishing to take divorce i am ready to give up bt i cnt give my baby,my baby is everythng for me i wont get married agn my baby is there tats enough for me,i am educated i will work hard n i wld take care of my baby plz let me knw is there any possibility tat i shd give my baby to his custody,plz let me knw my baby is my worls hw cn i give my baby to him………….?

  4. Dear Experts,

    I have a query,.

    I am father of two kids, elder (girl) 6 years old staying with me , wife left from me one year back with 8 months old boy, now she filed a divorce at Chennai family court asking divorce and permanent child custody of both. In fact when she ready to leave from me they never bothered about two kids since the second one (boy) was breast feeder i personally insisted to take care of him now its turned against me and asking child custody through notice,. I am residing in Kerala,…my wish is to take care both child with my protection,..wife is slightly unsound person (mental illness), i do have evidences to submit, is that anyway i can protect my kids from such parental issues, i am afraid to give kids to them if laws are favored to women only,.

    Please reply.

  5. Hello Experts
    I am physically handicap and single mother of 5yr old girl. My divorce was with mutual consent, finalised on 21sep 2012. Now I want to apply for passport of my daughter and they ask for legal custody. Due to mutual divorce no such custody is mentioned in divorce papers but in agreement it was mentioned that baby will stay with mother. My ex never came to meet the child since June 2011. Plz guide me, I dnt wana meet him again and dnt want my baby to go to court.

  6. Wonderful article about child custody. It’s the court who decides the custody of the child on a case-to-case basis. But until the child completes 5 years the mother has the every right to keep the child. The earning capacity of the parent does not determine custody but the capacity to provide a safe and secure environment does.

  7. Sandhya Dsuza Kamble -

    Hi. i am a mother of a child who is 8 yrs old. Child is a baby boy. I dont have good relation with my husband and want to have divorce. But i want my child with me. I want full custody of child. Please suggest whether i will get it or not. What i can do for it.

  8. Kamakshi Sood -

    Dear Experts,

    My Husband and I had a divorce by Mutual consent in 2011 as he was an alcoholic and had been in a de addiction center for 3 years in which the permanent custody of my girl child was permanently given to me with visitation rights to my ex husband.

    Since his return from the rehabilitation center he has been exercising his visitation rights, but still has put up case in court against me for being incompetent mother and is also asking for half of all vacations.
    she was 1 1/2 yrs old when i left him in 2009 and she has not spent time with him at all, n also he gives no money to me of my daughter as child support and maintenance.

    Please advise how can I stop this harassment as he and his family has been harassing me for the last 3 years in court.

  9. Hi,
    I m a divorced mother of 10yrs old daughter. I got divorce in 2009 with full custody & care of my daughter & got married again in 2010. Now my 2nd husband, me and my 10yrs old daughter are living v happily. she calls us mom & papa. Now, the problem is her passport & documents. How I should enter my present husband’s name as the father of my 10yrs old daughter. what the legal procedure should I follow, pls guide me.


  11. My sister got Divorced 4 years back but in the talaknama the moulana added a clause that when my sister
    will marry again then she has to give the baby to the father.
    Her Ex-Husband got married 2 month after the Talak but my sister was not willing to marry due to this clause.
    But now after 4 year my sister is married and her Ex Husband is asking for the girl.
    Please Suggest

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