Child Custody in India

Child Custody in India

Child custody in India refers to the right given to a parent by court to look after the child.  It is one of the most important issues that arise after the completion of the divorce or the judicial separation. The custody of a child depends on several factors, including the age of the child, the welfare of the child, the financial status of the parents, and the child’s preference. In this article, we will discuss child custody in Indian law in detail.

Types of custody of a child

• Full or sole custody: In this type of custody, one parent is given the right to take care of the child. The other parent has no right to make any decisions regarding the child’s upbringing but gets the visiting right of the child.
• Joint custody: In this type of custody, both parents are given the right to take care of the child. They have to make decisions regarding the child’s upbringing together.
• Split Custody: In this type of custody, each parent is given the custody of one or more children.

Factors upon which maintenance of a child depends

Child Custody Laws in India

In India, child custody laws are governed by 

• the Guardians and Wards Act, 1890, (Section 10)
• the Special Marriage Act, 1954 (Section 38)
• the Hindu Marriage Act, 1955 (Section 26)
• the Hindu Minority and Guardianship Act, 1956
• Hindu Adoption & Maintenance Act,1956
• Custody Under Muslim Laws

What does the law say about child custody in India?

As per the Hindu Minority and Guardianship Act, 1956 the Hindu child below the age of 5 years shall be kept under the custody of the mother as till this age it is only the mother who can give proper emotional, moral as well as physical support to the child. The custody of a boy or an unmarried girl below the age of 18 years and above the age of 5 years shall be given to the father of the child as he is considered to be the natural guardian and only after his death, the custody shall be given to the mother. In case the child is illegitimate then the custody shall be with the mother itself. 

As per the Guardians and Wards Act, 1890, the court can appoint a guardian for the child if the parents are dead or are unable to take care of the child. The guardian appointed by the court has the right to take all decisions regarding the child’s upbringing. 

As per the Special Marriage Act, 1954, the court may, from time to time as it deem fit and proper, pass such interim order in respect to maintenance and custody of the child after considering the welfare of the child.  

As per the Hindu Marriage Act, 1955, the court may, from time to time as it deem fit and proper, pass such interim order in respect to maintenance and custody of the child after considering the welfare of the child. 

Which parent can be granted legal custody?

At the present time, most courts attempt to grant both parents equal rights with regard to legal custody. This is to help the child interact with both parents rather than just one. However, in some cases, the court may grant only one parent legal custody. This is especially true where one of the parents is deemed unfit to make decisions on behalf of the child.

When determining which parent should be granted legal custody, the courts may consider many different aspects, including:

As with any child custody decision, legal custody determinations are made with the “best interests of the child” in mind. This means that the needs of the child take preference over any personal desires or intentions of either parent.

Child Custody Disputes in India

Child custody disputes are common in India, especially in cases of divorce or separation. In such cases, the court tries to resolve the dispute amicably. The court may appoint a mediator to help the parents reach an agreement regarding the custody of the child. If the parents are unable to reach an agreement, the court may decide on the custody after considering the welfare of the child.

In India, it is believed that no one can be a better caregiver than a mother. Unfortunately, it is not true all the time. Although while giving custody the mother is given the first priority, the father can get in the following ways:

If the mother is willing to give up custody of the child, then the father may get custody.

• If the mother is not mentally stable, the father is the next person to get custody of the child.
• If the child is of 13 years or more and expresses his wish to stay with the father, the Court shall grant it to the father.
• In case the mother is of an immoral character, which may affect the child as well, the father gets custody.
• If the father can prove the financial incapacity of the mother which shall in the future affect the upbringing of the child and also prove his financial capability to take good care of the child. 
• If the father can prove that the background of the mother has been in dark and that if the child will stay with the mother it will prove to be fatal to the upbringing of the child or shall affect his mental and physical growth. 
• If the mother is a convict herself, the custody of the child shall thereafter go to the father. 

The above are some of the factors which are used in the court to get custody. The same is not exhaustive and can vary depending from case to case on the basis of facts and circumstances. 

For a better understanding of the facts of your case and the application of laws, contact us to represent your case. 

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