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Child Custody (Law for the Layperson)

Posted: May 12, 2010
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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 : http://www.legalserviceindia.com/article/l34-Custody-Laws.html

You are not alone : http://groups.yahoo.com/group/you_are_not_alone_we_are_there/ (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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29 Comments


  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.

    http://www.pathlegal.in/FamilyCourt/India/

  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.

  10. whywhy the CHILDREN OF SINGLE MOTHER ARE NOT ISSUED THE IMPORTANT CERTIFICATES LIKE DOMICILE, NATIONALITY,AGE ,CASTE VALIDITY etc ON THE BASIS OF MOTHER’S OWN CERTIFICATES ,WHEN SHE IS SINGLE HANDEDLY RAISING HER CHILDREN ? . CAN ANY HELP BE RENDERED TO SAVE THE BRIGHT FUTURE OF SUCH CHILDREN WHERE THE WORKING MOTHER IS WHOLE SOLE PARENT. ,? CAN SUCH IMPORTANT DOCUMENTS BE ISSUED ON MOTHER’S CERTIFICATES INSTEAD OF FATHER’S WITH THE DIVORCE DECREE PROOF ?

  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

  12. I need some advice here. I married in 2005 we had a wonderful life initially but then I started making more money and that is when my wife’s parents turn greedy. Initially they would ask for small amount and at my wife’s insistance I would help them, I helped my brother in law with 500000 RS to start business which he lost and could not provide account. My wife blindly loves her parents and I loved my wife blindly so I would help my inlaws and BIL at her insistance. Turned out that they bought a home and were not able to make monthly payments, I was in Kuwait with my wife and my wife started sending every month money to her parents without my knowledge. Finally, I realized that I am not having enough saving, so started keeping bit close tab on expenses and I realized what was going on. I put an end to this and my life became miserable. She was instigated by her parents who provoked her to file wrong complains of domestic violence against me. They started with female organization in which they failed, then they complained to Indian high commission in Kuwait and they also found that there was nothing wrong.

    I was supposed to immigrate to Canada with family but because of her changed nature I decided not to. She apologized in writing and we immigrated to Canada. After about 3 months she started the same thing again. I was doing labor job and she was researching how to get benefits from government in my absence. One day she called cops on me when I was sleeping claiming I abused her – there were no injury so cops after investigations released me and filed a closure report stating there was nothing verifiable.

    However this allowed her to claim a single status and now she is getting 1600 dollars from Government in Canada and she is keeping both my children. I do not want to live in Canada and I want to stay in INdia with family or if she does not want to come to India, I would like to stay in India with my kids.

    Are there any laws in India based on which I can file “legal abduction” of kids by my wife and force her to come to INdia from Canada – kids are Indian Citizens and based in Canada only for 11 months now.

    It seems that she is instigating kids against me – as I notice that kids are asking questions to me which no child of 5 years would ask.

    Are there really any laws which would force an Indian Citizen Mother to bring Indian national kids to India?

    I would appreciate any help provided here….I am suffering without my kids and she is having fun with government money and sending them to her parents – She wants to keep kids because if there are no kids she would not get this much money but get only 500 dolllars per month so kids are like ATM for her.

  13. My wife and I have separated and we have a 4 year daughter, my wife wants to relocate to another state with my daughter to live with her parents.

    I have no issues letting her go with my daughter(mutual understanding) however do I need to have some legal documentation done before she leaves the city we live in?

    What are the important points I need to know? What kind of lawyer do I consult?

    I am looking for answers to the above questions.

  14. If child is > 5 yrs layer should ask to whom he/she wanted to stay

  15. My sister’s spouse has applied for divorce in May 2015, after a fight in China (where they lived) in April 2015 soon after that my sister came to India. Access to the child in all forms including communication failed. Their son currently 12 year old was subjected to international travel to USA without the consent letter from the mother. The child traveled alone to USA. My sister got all the details of her child’s travel from her son over the first appearance before the court. Father and son flew the same night back to China. Despite several attempts, father is not responding. We are worried for the child’s safety. please advice

  16. I have a 7 years old son . Since 6 years his father didnot look after him or gave any maintenence , now he has filed a case of hild vivsitatiin , i have to make my child go and meet him in court children complex evry 15 days and now he has applied for summer vacation visits . Can my child who is 7 years old say no to visit him overnight stay during vacation , will the judge approve his my childs statemen or sent him to stay for vacation with his father ??

    pls guide me also i have said to the marriage counsellor that i dont want anything any maintenence from my husband the only thing i want is he ahould leave me and my child alone . Will the counsellor approve this ? Kindly guide me plsss

  17. Hai, I am a 26 yrs old. I’am a BE graduate. Before marriage my husband parents are telling ‘my son is completed MBA’. But He is not completed. I was asked to my husband ‘How they are telling like that’. After my husband giving a torture & Doubted on me. He is applied the divorce case. Now I have a 6 month gril baby. In front of Judge he is telling more & more lies. All the words are hearting me.
    Now my question is after divorce I want my child. I am only for living my child. But my husband is telling However I Bring my child. It is possible are not. Pls reply

  18. Hi, I want to know a detail of custody of Girl child aged 5.5. The marriage is in the verge of divorce and she needs the custody of the Girl and She is planning to re marry as well. Independent working women of age 33. Guy who married her was not taking care of the family or child or her. So she needs the divorce. But Some law say custody might deny if a women re marry. But the Girl child only say I want mother. She cannot be without her. Both cannot live as well too after many try from her and the guy seems to be lost interest in family life and not even talking with her. Just say hi to the girl child. Please suggest. She desperately needs divorce and the child and her family wants to re marry her. Will remarry affects the child custody?

  19. Helo sir/ madam.My divorce case is on in Ludhiana court from October 2015.I was living with my parents from August 2014. I have a daughter also.She born in October 2013.She was also living with me.With mutual agreement, my in laws filed the case.We spent 50 lakhs on wedding including jewellery.They signed on a agreement of 24 lakhs and jewellery to b given to us.Jewelry is already given to us and 12 lakhs also.remaining 12 should be given in April 2016 on final hearing.when I was living with my parents, my husband didn’t even cal a single time for her daughter.but later,when the time of case filling was coming,they demand for daughter.I gave her to them on October 2015.because my parents want me to marry again and our relatives also pressurized to give the child to them.It was my biggest mistake in life.She is my weakness.I love her from my heart.I can’t live without her.I want my daughter back at any cost.In court I signed on paper that I will not belonged to her.I give custody to them.after 15 days from filling case,till now,I am asking them to give her to me..but they are denying. Final hearing is in April.what to do to get her back.what to say to judge when he ask me that why u give her.I don’t want (kharcha) money for daughter.please help.

  20. Hi i m deepak .i hv 18 months younger child.i love my wife and child alot.my life was happy . I hv done love marriage.life mast thi .meri wife ke parents mujhe mante ni thi.wo shuru se chahte the ki unki beti mujhe chod de.but ghar me kuch problems se unhone meri wife ke dil me mere kr mere gharwalo ke dil me nafrat paida kar di.ab wo 2 months apni maa ke pass rhti hai. Or 15 din mere sath..main na sharab peta hu na ladta hu chup rhta hu..to wo mujhe dhmki deti hai divorce ki ki main beta le jaungi.wo to mere sath ab koi risht Ni rkhna chahti.or main Pne bete ke bina nhn rh skta .or wo dhmki deti.hai ki court bhi uski hi sunega.uski maa bhi divorce hai.to aap btaye court me mujhe mere bche ki curstody mil skti hai kya

  21. Koi meri help to kro.mrne ka dil karta hai.jb sochta hu ki mere bche ki jindgi brbaad ho jaegi.main bank me kaam krta hu..mere ghar me mere bche ki care krne wale sb hai .wo bs mere bche ko bhi kisi kevpass jane niv deti .pathar hai wo.kya kru main

  22. I am a father of a 7 yrs girl child born in the year 2010 even after our divorce legally by the court in 2006. after reconciliation mutually out of court. now I the father wants to stop the child travelling abroad without my consent. what is the procedure to stop her travelling without my knowledge. what documentation i have to prepare and whom to contact.

  23. Hi everyone,

    I am 28 years male and a father of one beautiful girl of 6 months old. Ours is a love marriage. My mother did not accept the marriage as my wife was of different caste. But my father was ok with this and the girls parent too. I had explained to my girl about my mother that she will not be co-operative and I promised her that our parents will be staying seperately. Post marriage, as my mother did not accept our marriage, I and my wife were sataying in here place. After 1 year, I built my own house and parents are staying in different floor. Now my wife doesnt want her to involve in anything and she expects me to stay away from my parents. My mother is ok now, they are caring for us. But my wife and her parents are torturing me everyday saying your mother was not there in marriage and I dont want your mother talks now.
    she uses foul languages over the whatzapp, which I really cant tolerate. My wife and her parents doesnt want me to come to their house; but my baby is in their place and I badly want to see. As I dont respect their I dont want to go to their place.
    Please help!

  24. Hi , its 7 years of my marriage , i am facing domestic violence. husband drinks and started harassing me. every year i just came to my mothers home and stay there. now i want my daughter she is 5 year old. My husbands sister age of 40 is unmarried, she take take cares of my daughter . she never leave my child to get in touch with me, or to spend time . i want my daughter . can i get my daughter from school. plz advice me. i am at my mothers home from 2 months and i dont want to back to my husband home.

  25. I am a mother of 13 year girl presently residing with father in Mumbai. Due to extreme torture and for safety reasons i have stayed away from him for the past one year. Now i am concerned about the girl child as i have not seen her nor spoken to her for the past one year as her father has deprived her from talking to me or meeting me. I have now approached the court. Recently he was asked to give the exact date as to when he would bring the child to show me. I do not have any address as to where they have kept the child. My husband has given fake affidavit that she is oman while he himself does not have a job. And only the father or mother can sponsor the minor child. Please advise how to get my child back through court asap. As a mother, I would like to know how she is emotionally.

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