Child Custody Laws in India

Explore the laws regarding child custody in India. Understand the law, procedure, guidelines, and benefit from LawRato’s network of experienced lawyers providing expert guidance on child custody during divorce.

LawRato will guide you to understand the laws related to joint custody of a child in India. You can seek advice from experienced lawyers around India. These lawyers will guide you through the provisions, procedures, and other important things involved in a child custody case.

What is Child Custody during Divorce in India?

Child custody is a pivotal aspect of family law proceedings. It deals with the allocation of parental rights and responsibilities regarding a child following divorce or judicial separation. In India, the determination of child custody is a multifaceted process governed by legal statutes and guided by the principle of prioritising the best interests of the child.

Amid divorce or separation proceedings, the issue of child custody frequently emerges as a central point of contention. While no strict guidelines dictate custody arrangements, courts are entrusted with the task of meticulously evaluating various factors to reach a decision that promotes the child's welfare and overall well-being.

In many instances, courts tend to award joint custody to both parents, recognising the importance of maintaining meaningful relationships with both maternal and paternal figures in the child's life. 

Ultimately, the resolution of child custody disputes demands a judicious balancing of legal considerations with the overarching goal of safeguarding the child's physical, emotional, and developmental needs. Through meticulous assessment and thoughtful deliberation, courts endeavour to arrive at custody arrangements that promote the child's healthy growth and overall welfare.

Custody of Child during Mutual Divorce in India
In the cases of mutual divorce , the parents have to decide amongst themselves regarding the custody of the child. They have to decide who gets the custodial rights and who gets the visitation rights. Parents can also go for joint custody or shared parenting in a mutual divorce. They have to decide regarding the schedule, holidays, visiting hours, etc. The principle of 'best interest of child' must always be applied. The agreement between the parents must be subject to the welfare of the child.

Custody of Child during Contested Divorce in India
During a contested divorce proceeding, the issue concerning child custody becomes a matter for the court to decide. The court takes the best interest of the child into account while deciding the custodial rights. The court will decide on the basis of the circumstances of every case and for the welfare of the child.

It is imperative to hire a good lawyer for a sensitive issue like child custody. If you are looking to connect with a lawyer for your child custody issue or for divorce, you can consult one by simply filling in your details in the box above. With  LawRato   , you can get in touch with the top-rated child custody lawyers near you   for all your legal requirements.

Aspects considered by the Court while deciding Child Custody

The court considers the following while deciding on the custody of the child:

1. The personal law to which the child is subjected.

2. The age, sex, and religion of the child. The child must be a minor i.e. less than 18 years of age, unless the situation demands otherwise.

3. The character and capacity of the proposed guardian and his nearness of kin to the minor.

4. The wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

5. If the minor is old enough to form an intelligent preference, the court may consider that preference.

6. The court shall not appoint or declare any person to be a guardian against his/her will.

7. The courts prefer to keep children together and award custody of both together when the issue of custody involves two or more siblings.

8. The child's comfort, health, material, intellectual, moral, and spiritual welfare.
    

In Rohith Thammana Gowda vs. State Of Karnataka & Ors., the Supreme Court deliberated on the issue of child custody, emphasising the paramount importance of determining the child's best interests. While acknowledging the significance of the child's wishes, the court underscored that the ultimate decision regarding custody must be based on a comprehensive evaluation of all relevant circumstances.

The court highlighted that the welfare of the child should be the primary consideration in custody disputes. Recognising the distinction between the child's desires and what is truly in their best interests, the Supreme Court issued directives regarding custody and visitation rights. Through its ruling, the court sought to ensure the child's welfare and facilitate arrangements that promote their holistic development and happiness.

What are the Requirements to File for Child Custody?

You should take the help of a child custody lawyer while filing for child custody. However, there are certain set requirements in order to file for it:

1. Child custody is filed during or after the divorce proceedings or in case of judicial separation.

2. The child should be less than 18 years old in order to be eligible for custody.

3. A person of unsound mind can also be given custody.

4. One should have the legal right to take custody. In India, both parents have legal rights to the child.

What is the Process to file for Child Custody?

The process of filing for child custody can be divided into the following -

1. Drafting the Application: - An application is to be drafted with the help of a child custody lawyer during or after the divorce proceedings which must include the reasons why the custody of the child should be given to the concerned applicant.

2. Filing the Application: - This application should be filed in the court of appropriate jurisdiction.

3. Hearing: - Once the application is filed, there will be a proper hearing in the court where both parties will be given an opportunity to present their side of the case.

4. Court decision: - After hearing both parties a final decision is taken by the court.

Click here for more information on child custody on LawRato 's portal.

Where to File for Child Custody?

According to Section 9 of The Guardians and Wards Act, 1890, the application with respect to the guardianship of a minor person will be filed in the District Court which has authority over the area where the minor is residing.

Who can File for Child Custody?

Person(s) who can file for child custody differs from law to law, and sometimes, even state to state: Hindu Law & Christian Law

• Father

• Mother

• Grandparents, both maternal and paternal

Muslim Law

• Mother

• Father

Other relatives and persons, apart from the parents who can claim the custody of a child are:

• Nearest paternal grandfather

• Full brother

• Consanguine brother

• Full brother's son

• Consanguine brother's son

• Full of the father

• Consanguine of the father

• Father's full brother's son

• Maternal grandmother

• Maternal great-grandmother

• Maternal aunt and great aunt

• Full sister

• Consanguine sister

• Uterine sister

• Paternal aunt

What are the Documents Required for Child Custody in India?

• Documents required to file for a child custody matter are given below:-

• Valid ID proofs such as PAN card, Aadhaar card, driver's license, passport, etc of the spouses,

• Valid ID proof of the child

• Birth Certificate of the child in question

• Divorce Decree or marriage certificate of the parties

• Passport size photo of the child in question

What is the Duration of the Process for Child Custody in India?

If an application for child custody is moved in the situation of mutual divorce, then, in that condition it could be decided within 6- 8 months from the date of filing of the application. But, if the application is moved in the case of contested divorce, then there is no fixed time period to grant the custody and it could take a minimum of 1 & ndash 3 yrs. The time taken to decide child custody depends upon various factors, the most important one of them being the

Can Court Deny Child Custody?

Yes, although parents in a divorce cannot deny each other custody of the child or visitation rights, it is at the discretion of the court that custody rights are denied to certain parent(s) when the court assumes that is in the best interest of the child. There are several reasons why the court denies child custody. Some examples are-

1. Non-custodial parents not paying child support

2. Drug or alcohol abuse

3. Child abuse

4. Incarceration

5. Violent mental illness

6. Child's wishes

What are the Different Types of Child Custody?

Different kinds of child custody (during or after divorce) that can be awarded by the courts to parents in India are stated below:

1. Physical custody of the child & ndash Physical custody of the child means that the child shall stay with the parent who is granted physical custody. In such cases, the other parent may be granted visitation rights. The parent who has physical custody is usually the primary guardian and the child stays with him/her.

2. Legal custody of the child & ndash In legal custody, the parents have the right to make important decisions regarding educational and religious upbringing, financial support, and medical care that affect the welfare of the minor child. This decision-making is generally shared among parents and the expenses and maintenance are borne by both the parents.

3. Joint custody of the child & ndash In the case of joint custody, both parents have equal physical and legal custody. Though there are no legal provisions on this, the judiciary has been taking steps to give joint custody to both parents in India. Through this, children can get the benefit of having both parents as active members in their life, thus, doing away with the concept of primary guardianship.

While deciding who gets custody in India, economic background, emotional support, capacity to bring up the child, etc are considered. Custody of child is decided only after the Court is assured that the welfare of the child will not be compromised. If you have any queries regarding child custody in divorce matters, you can consult a child custody lawyer near you . Through LawRato, you can even ask a free legal question and get answers from expert child custody advocates.

What is Child Custody as per Hindu Law?

The custody of a Hindu child is governed by the Guardian and Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956 . This law is also applicable to Jains, Buddhists, and Sikhs as they are also included under the definition of Hindu.

• As per Sec 6 of the Hindu Minority and Guardianship Act, 1956, a Hindu child below the age of 5 years shall be kept under the custody of the mother as at 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 may 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.

• A third person can also be given custody of the child if the parents are not willing to take custody of the child or if the court thinks it is in the welfare of the child that he/she stays away from the parents. In this case, usually, the grandparents (paternal or maternal), will be preferred to get custody of that Hindu child if they are capavle and interested.

• If neither the parents nor any of the close relatives of the child are initiating to take custody of the child, then the court by itself shall find an appropriate person who could take custody of the child.

What is Child Custody as per Muslim Law?

Under Muslim personal law, the right to a child's custody is called “ hizanat” and can be enforced against any person, including the father.

• The custody of a Muslim child is with the mother until he has attained the age of 7 years for a boy and until a girl has attained the age of majority or puberty.

• The custody of a boy after he has attained the age of 7 years and the girl after she has attained majority or puberty could be with the father, as under the Muslim law, it is the father who is considered to be the natural guardian of the child.

• The right given to the mother in case of child custody is not absolute and exists only if such right is beneficial and is in the interest of her children. Thus, the welfare of the children is at the forefront of Muslim law as well.

What is Child Custody as per Christian Law?

As per Section 41 of the Indian Divorce Act, of 1869, the courts have the right to make decisions regarding the custody, education, and maintenance of Christian children. It is up to the discretion of the court keeping in mind the welfare and best interest of the child. The court can even deny custody to both parents if they are unable to give the proper opportunity to the child to grow both mentally and physically.

What is the Law on Child Custody for Boys or Girls after Divorce in India?

Child Custody before 5 years Generally, the custody of a child below the age of 5 is given to the mother. However, in certain circumstances, where the mother is proving to be an unfit parent, the court shows discretion while granting custody. However, according to the law commission report (no.257), equal rights are granted to parents while assuming custody under Hindu law. Under Muslim law, the custody of a child is with the mother in the case of a boy, until he has attained the age of 7 years and in the case of a girl, until she has attained the age of majority or puberty. Father's Right in Child Custody Fathers have equal rights as mothers while obtaining custody of the child. Earlier, mothers are given more preference while granting custodial rights. However, with the changing mindset, the court grants equal rights to both parents. The visitation rights of an unmarried father often depends on their relationship with the child, any history of child abuse, drug, and alcohol use, and other such factors. While the court recognizes visitation rights, mothers are still preferred for granting custody. To get custody of a child, an unmarried father would likely need to show that the mother is unfit to raise the child and/or that he has been the child's primary caregiver. Mother's Right in Child Custody Initially, the mother had the primary custodial rights over the child. However, for the court to grant the mother custodial rights, she must present herself as a fit parent.

What is the Law on Custody of Child above 7 years of Age in India?

Under Muslim law in India, custody of a child above 7 years old is generally granted to the mother, provided she is of good character, has not been remarried, and can provide a suitable home environment for the child. This is based on the principle of & quot hizanat& quot , which is the right of a mother to have custody of her child during his or her early years. According to Muslim law, a mother has the right to custody of her male child until he reaches the age of 7, and of her female child until she attains puberty (which is generally considered to be around the age of 9). After the child reaches the age of 7 (for a male child) or puberty (for a female child), the court will take into account the wishes of the child, as well as the best interests of the child, before making a determination about custody. In general, the court will consider factors such as the age, gender, health, education, and emotional needs of the child, as well as the ability of each parent to provide for the child's needs. It is important to note that the application of Muslim law in India is subject to the interpretation of the courts, and the outcome of custody battles can vary depending on the specific facts of each case. It is advisable to seek the assistance of a competent child custody lawyer who is knowledgeable about Muslim law to help navigate the legal system and ensure that your rights and the best interests of your child are protected.

How can a Guardian get Child Custody?

Non-parent custody is granted only under certain circumstances and through specific procedures. The court only grants custody to a nonparent only when the welfare of the child is assured and the court is satisfied that the child will not be harmed. There are two primary ways to file for custody of a child that is biologically not your own:

1. Guardianship - The first method is through guardianship, i.e. parents give written consent to non-parents to give them custody of the child. Consent guardianship is not possible if one parent disagrees with it.

2. Non-parent custody - The second method is granting non-parent custody. In this scenario, the non-parents file for child custody in the appropriate court where the child currently or permanently resides.

To grant non-parent custody, the court must be satisfied -

• That they have a long-standing relationship with the child and are fully capable of substituting for the parents in caring for the child.

• That it would be in the best interest of the child's welfare to give his/her custody to the non-parent, and also that it would prove to be detrimental to the child if he/she were left with the original parent(s) willing to retain the custody.

• That the court has not determined custody within one year of the filing.

In such scenarios, one of the following criteria applies:

• One of the child's legal parents is deceased.

• The child's parents are not married at the time of the filing.

• The child's parents are legally separated or are divorcing at the time of the filing.

What is Sole Custody of Child?

Sole custody is different from joint custody. It refers to the full legal and physical custody granted of a child to one parent. In sole custody, the parent gets both physical custody and legal rights toward the child. Typically, the court will agree to grant visitation rights to the other parents, unless such action does not serve the best interests of the child. Factors Considered while granting sole custody:

1. Best Interest of the child

2. Documentation

3. Conduct in the court

4. Detrimental to grant joint custody due to the other parent

What is Child Maintenance after Custody?

It is the duty of the parents to maintain the child once the divorce proceedings are over and act in the best interest of the child. The duty to support the child rests on both parents unless exceptional circumstances call for one parent to exclusively provide maintenance. However, this does not preclude the other parent from being a part of the child's life. Where the parents are in disagreement with each other, the Court has the right to settle the dispute.

What if a Spouse Denies paying Child Maintenance?

In cases where the spouse denies paying the child maintenance, then visitation or custodial rights can be taken away by an order of the court. Further, if the child support is set up in a contractual agreement, the basic remedy is suited for breach of the contract and the other parent can sue for breach. If child support is payable under a court order, the order is also enforceable through the contempt powers of the court. It is important to understand the laws related to child custody in order to make a strong case in your favour. Through LawRato 's LawGuides & Articles on Child Custody , you can educate yourself on the issue.

The Courts on Child Custody Law in India

• In 2022, Supreme Court of India in Vasudha Sethi vs. Kiran V. Bhaskar ruled that the child's welfare constitutes the sole criteria in deciding the issue regarding custody of the minor child and the issue of repatriation of the child to the native country. The Court noted that parental rights are irrelevant in such cases.

• The Supreme Court in one of its cases also held that second marriage is not a ground to deny the father the custody of his children. In this case, the parents took a mutual divorce and the parties were at liberty to re-marry. However, later, the mother of the child filed for denying custody to the father on grounds that his second wife was also cohabiting with the father and son. The Supreme Court stated that the second marriage cannot be put against the father as it is not affecting the child negatively.

• The Supreme Court in another case gave the judgment regarding giving the custody of the child to an institution. The court held that “ the handing over of custody of the child to an institution while ignoring the claim of a parent, especially the mother of the child, is not acceptable” .

• The Supreme Court in another case in 2008 held that the & lsquo controlling factor deciding the custody of the child must be based on the welfare and best interest of the child and not the rights of the parents.

Do's and Don'ts of Child Custody

The parent trying to win the custody of the child must present themselves properly in court and must follow certain Dos and DON'Ts in the court. Some of these are stated below:

1. Do show a willingness to work with your ex-wife/husband.

2. Do exercise your parental rights.

3. Do request an in-home custody evaluation.

4. Be aware that perception is everything.

5. Educate yourself on child custody laws and family laws.

6. Prepare documentation.

7. Work with an experienced child custody lawyer.

8. Don't talk about your ex-wife/husband negatively to your kids.

9. Don't make a habit of rescheduling time with your kids.

10. Don't abuse alcohol or drugs, especially when you're with your kids. Don't refuse to do anything the court is asking of you

11. Don't involve your children in the court case. Don't invent negative stories in an attempt to win custody.

12. Most importantly, have genuine care and concern for your children.

Why do you Need a Child Custody Lawyer?

It is imperitive to engage a good child custody lawyer for navigating the legal complexities that are involved in such disputes. A lawyer can help you build a case in your favour, draft all the requisite court documents and also represent you in court. A good lawyer ensures some peace of mind, during such crucial time. With the help of LawRato's vast network of top child custody lawyers , you can find the one suitable for you, in your city. You can even take free legal advice from expert child custody lawyers before hiring an advocate.

FAQS

1. Is it necessary for an unmarried mother to file for custody? An unmarried mother is automatically considered the guardian of the child and hence does not have to apply for child custody separately.

2. Can a father take custody of a child from a mother? It has been seen that the custody of the child is often given to the mother, however, in certain circumstances, if the court thinks that it is in the best interest of the child to stay with the father in that condition the custody can be given to the father.

3. What is the age limit for child custody? The child needs to be a minor, i.e. less than 18 years old in order to be given in custody.

4. What is the difference between child custody and visitation rights? Child visitation refers to parenting time only. That is, the amount of time one parent is allowed to spend with a child. While in the case of child custody, the child stays with the parent and gets the right to make decisions regarding a child's health, education, welfare, etc.

5. How to file for child custody from another country? In a matter, Supreme Court held that the & lsquo jurisdiction of Indian Courts is not limited to child custody cases. This means that in child custody cases, a spouse can also file from a foreign land and will not be stopped by the courts.

6. How to get child custody if the husband/wife is irresponsible? If one spouse is irresponsible or proves to be a detriment to the child, custody can be denied by the court. The other spouse has to prove in court that the other spouse is an unfit parent. It is important to get good legal advice on child custody to build a strong case in your favour.

7. What happens when both parents deny custody? In the circumstances where both parents deny custody of the child, the custodial rights are generally shifted to a guardian or a non-parent. If there is no guardian, then the court shall appoint such guardian or non-parent who shall assume the custody of the child.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

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