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Research On: Child Custody Laws in India

In today's world, Divorce and separation is the challenging issue. But custody of the child is the most crucial issue after the separation of the spouses. Child born out of that marriage is the most affected person. Custody is the right given to the parent of the child (below 18 years) through Court. Parent on whom the right is vested shall take care of the child by providing financial security, maintenance, healthcare and emotional support.

The other parent shall only have access to see the child. However, both the parents have equal rights when it comes to custody of the child. "Welfare of the child" is the most important factor to take into account while making decisions on child custody or other matters was held in the case of Sheoli Hati v. Somnath Das[1]

The Indian law considers the child's safety and welfare as an important issue for determining who shall obtain the custody of a minor child thereby respecting a parent's right to custody. This article enumerates the laws pertaining to child custody and types of custody available in the country.

Who Can Claim Custody Of The Child

Though both the parents have equal custodial rights, custody of the minor child can be claimed by either mother or by the father. In cases where both the parents are deceased or unfit to provide custody, their maternal or paternal grandparents or any other relative from the family shall possess custody of the child. However, in most of the cases, a third person is appointed as a guardian by the court with a view to protect the child.

Types Of Child Custody In India

  • Physical Custody:
    Incase of physical custody, the child will be under the guardianship of the custodial parent for living, while the other parent has the right to visit the child occasionally. This method is the most prevailing method as it benefits both the child and the parents.
  • Joint Custody:
    This is the most common type of custody, in this type both the parents will take turns and keep the child under their custody. Indian courts believe that providing joint custody is for the welfare of the minor child.
  • Third Party Custody:
    Under this type, a guardian or third person is appointed by the court and such person shall get the custody of the child. This type is also known as non parental custody.
  • Sole Custody:
    If the court finds one parent to be unstable, incapable of bringing up the child or being offensive then custody of the child is solely handed over to an another parent. In the case of Vivek Singh V.Romani Singh[2], the court observed that a parent's negative approach will be a strong factor against them while determining the custody of the child by the court.

Legislations Governing Child Custody In India

Section 26 of the Hindu Marriage Act, 1955
Section 26 of the Hindu Marriage Act, 1955[3] provides for the maintenance of the child if the parents are the followers of Hindu religion.

Section 38 of the Special Marriage Act, 1954
Section 38[4] of the Act deals with custodial rights of the parents where both belong to different religions.

Hindu minority and Guardianship Act, 1956
The provisions under the Act provide custodial right only to the biological parents and exempts third party from taking custody of the child. It is further only applicable to Hindus. Guardianship or custody orders shall not be final and any person who is genuinely concerned for the minor child shall question at any time[5].

Custody of child under Muslim law
Under Muslim law, till the age of seven the natural custody is vested with the mother and father of the child shall be the natural guardian.

Custody of child under Christian law
Section 41 of the Divorce Act, 1869[6] provides for the custodial rights of the Christian parents, the child's welfare plays a vital role in determining the custodial rights.

Custody of child under Parsi law
The custodial rights of the parsi are governed under the Guardians and Wards Act, 1890.

India is country that follows strong tradition when it comes to family and children. They consider child to be the blessing of the family. But when it comes to custody it completely depends on the decision of the Judges. This is the most intricate and sensitive issue when there is a separation of parents.

Always there has been controversy between various personal laws and common law governing custody of the child. These controversies should not in any way affect the child's future. Welfare and social security of the child is the predominant reason for the custody of the child. So, resolving various conflicting legislation should be the first step to solve this convoluted issue in hand.

  1. Sheoli Hati v. Somnath Das (2019) 7 SCC 490
  2. Vivek Singh V.Romani Singh (2017) 3 SCC 231
  3. Section 26 Hindu Marriage Act, 1955
  4. Section 38 of the Special Marriage Act, 1954
  5. ABC v. State (NCT of Delhi) (2015) 10 SCC 1
  6. Section 41 Divorce Act, 1869.

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