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Child Custody Laws in India- Who Gets Child Custody After Divorce In India?

Explaining the basics of child custody laws in India - if you are filing a divorce, you need to understand how child custody works.

Explaining the basics of child custody laws in India – if you are filing a divorce, you need to understand how child custody works.

Post updated on 01 June 2022 by Pranjali Hasotkar

Perhaps one of the most crucial issues that come 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 its 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).

What are the child custody laws in India

  • Custody means that one parent is held responsible for the child’s basic/daily needs although the non-custodial parent may still have visitation rights.
  • Some aspects of child custody law in India vary depending on which religion you belong to.
  • There is no automatic transfer of custody in the event of a divorce; regardless of religion, custody affairs are decided by the courts.
  • Depending on the case, the court may award sole custody to one parent or joint custody to both parents
  • Courts in India have usually given custody of young children to the mother, because ‘children of tender years cannot manage without maternal affection. This is not however a hard and fast rule.
  • Children’s preferences for custody and living with one parent over the other are generally considered after 9 years of age.

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 applies 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.

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As per Muslim personal laws, custody of minor children is given to mothers. But after the age of seven years, the mother’s right over the son ends. Custody of girls is given to mothers until they attain puberty. One important aspect of this law is that the conduct of the mother is considered 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 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.

You can also watch our updated video on child custody cases in India, to get a quick view of the subject.

How courts decide child custody- Sole custody and Joint custody

The courts give their decision on child custody 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 remain, which means that in the 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 child 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.

How is child custody given to a parent – At what age can a child decide which parent to stay with?

Firstly, the child’s preferences (if they are above 9 years) are taken into consideration. Other than that, one of the most important factors is the parents’ mental and physical health conditions. Moreover, religious and cultural consideration is taken too.

Secondly, the home environment in which the parents live acts as a major factor. Furthermore, the parent’s work schedule, the child’s adjustment to the particular school and community, their age and sex (the child’s) and the lifestyle of both the parents and their ability to take care of the child are important.

The child’s emotional needs are also taken into consideration. The overriding factor is the best interest of the child.

Other important key facts about child custody law in India – Who has more rights over a child in India?

Child 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.

What are the primary responsibilities of the caretaker (custodian)?

Firstly, meal planning and the preparation of the meal are very important.

Secondly, bathing the child, dressing them and taking care of their health is crucial.

Lastly, the custodian needs to be an active participant in the child’s education by teaching them reading, writing and so on. Participation in extracurricular activities is of grave importance too.

Other Useful Links

Some links that deal with child custody law in more detail 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, the law is a complex subject and errors are possible. The information here is therefore not meant as a substitute for legal advice.)

Top image via Pixabay

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