The wardship of a child after the breakdown of parental figures is a significant problem. As is often the case, movies and books tend to stress how children experience emotional pain when their parents split. Assigning guardianship to a minor comes in after the conclusion of a divorce or a legal separation of spouses, and this is by far one of the most critical issues a judge must resolve.

The guardianship of a minor principle is when the court allows one of the parents to care for his child (if the child is younger than 18 years old). The designated parent is mandated to guarantee the child’s financial stability, provide the necessities that ought to be in a good standard of living, such as shelter and healthcare, and provide a conducive environment for the child’s emotional, physical, and educational development. On the contrary, another parent is granted visitation rights whose purpose is to interact with the child. In case of child custody deliberations, the family courts arrive at their decisions based on the welfare and the child’s best care.

Keeping the basis of it, this article will delve into the basic understanding and statutory importance of child custody concerning Indian laws. In Sureshta Devi vs. Om Prakash (1991), the Supreme Court opined that the phrase ‘had not been able to live together’ in divorce proceedings implies that the marriage has irretrievably broken down. The court emphasized that the child’s welfare must be the primary consideration in custody disputes, ensuring that the child is not exposed to a hostile or unhealthy environment.

Overview of Child Custody Laws in India

India, being home to diverse communities, navigates various personal laws to address societal issues, often resulting in contrasts with central legislation. Different personal laws about child custody post-parental separation include:

Custodial Provisions under Secular Law:

Section 38 of the Special Marriage Act, 1954:

   – Addresses custodial rights in cases where parents belong to different religions.

   – Deals with custody, education, and maintenance of the Child. 

Custodial Provisions under Hindu Law

1. Section 26 of the Hindu Marriage Act, 1955:

   – Governs custody, education, and child maintenance when both parents are Hindus.

2. Hindu Minority and Guardianship Act, 1956:

   – Focuses on custodial rights solely between biological parents who are Hindu, excluding third-party rights.

Custody of Child under Muslim Law:

– The mother holds natural custody until the Child turns seven, after which the father becomes the natural guardian, aligning with the age of puberty.

Custody of Child under Christian Law:

– Custody of the Child under Christian Law is governed by Section 41 of the Divorce Act of 1869, which emphasizes the Child’s welfare. Additionally, the parents must demonstrate the capability of childbearing. 

Custody under Parsi Law:

– Custody under the Parsi Law is managed by the Guardians and Wards Act of 1890, which prioritizes the Child’s well-being with multiple legal provisions. 

Also Read: – Advocate Kiran S R Divorce Lawyers in Bangalore

General Rules Regarding Child Custody Laws in India 

Hindu Law 

  • Custody of a child under the age of 5 is conventionally granted to the mother due to the belief that children of such tender age require affection and care, attributes typically associated with maternal care.
  • Under Hindu law, the father traditionally holds the position of natural guardian with the primary right of custody, as codified in Section 6 of the Hindu Minority and Guardianship Act, 1956. Children in India aged between 5 and 18 have historically been under the custody of the father. However, in the case of Geeta Hariharan v Reserve Bank of India, the Supreme Court ruled that the mother’s claim to custody is viable only in the event of the father’s death or absence. 
  • If the court finds neither parent capable or willing to adequately care for the child in their best interest, custody may be awarded to close relatives. In the absence of suitable relatives, custody may be granted to a capable third party at the court’s discretion.

Muslim Law 

  • In Shia law, the mother retains custody of the minor child until the son reaches the age of two and the daughter reaches 7. 
  • Hanafi Law, another Muslim Law, allows the mother to have custody of her son till the age of seven and custody of the girl until she reaches puberty. 
  • Even after divorce, a mother maintains custody rights, but if she remarries after divorce proceedings in India, custody typically transfers to the father.
  • The child’s consent is considered if they are deemed capable of understanding their best interests. However, this consent must be verified to ensure it is genuine and not influenced by external factors. If there is evidence of coaching, the child’s consent is disregarded.
  • The custody of a boy over the age of seven and a girl who has reached puberty typically shifts to the father, who, in Hinduism, is often recognized as the natural guardian.

Types of Child Custody in India

In Sunita Kachwaha v. Anil Kachwaha (2000), the Delhi High Court emphasized the importance of the parties’ financial capacity and the child’s needs in determining custody arrangements. The court highlighted that custody decisions should prioritize the child’s welfare and ensure that the child receives adequate care and support.

Keeping the same in mind, let’s discuss several types of child custody arrangements commonly recognized.

1. Sole Custody: One parent has the legal physical custody of the child, while the other parent has the visitation rights. The custodial parent makes the major life decisions till the child turns 18. 

2. Joint Custody: In this custody, both parents share physical and legal custody of the child. Both parents have the power to make significant life decisions, and the child gets to spend an equal amount of time with both parents. 

3. Split Custody: This arrangement involves each parent having custody of different children. For example, one parent may have custody of one child while the other has custody of another.

4. Third-Party Custody: In some cases, custody may be awarded to a third party, such as a grandparent, relative, or family friend, if neither parent is deemed suitable or able to care for the child.

6. Temporary Custody: This may be granted during divorce or separation proceedings or in cases where the child’s safety is at risk. It is usually a temporary arrangement until a permanent custody agreement is reached.

These are some common types of child custody arrangements, each with implications and considerations depending on the specific circumstances of the parents and the child involved.

Rights of Parents for Custody of a Minor Child 

In the case of divorce, when the rights of parents are in question, it is instead the responsibilities of each parent that matter the most. A minor child is considered to be an individual with all the rights. Even though the rights of both parents to the child are coeval and at the same level, the child’s welfare is paramount. Equal empowerment is given to both parents concerned about custody over the child.

However, the responsibility of assessing this issue ultimately lies in the family court. The Guardian and Ward Act of 1890, which serves as a cornerstone of secular legislation, can be identified as legislation that deals with such matters primarily characterized by its secular nature. However, the Act’s provisions sometimes take different routes than those seen in the personal law statutes.

The oversight exercised by the family court plays a vital role in adjusting and balancing the interests of the parents. In Tejaswini Gaud v. Shekhar Jagdish Prasad Tiwari (2019), the Supreme Court reiterated the principle of focusing on the child’s welfare as paramount during custody disputes. The court further iterated that the custody decisions should focus on having the child’s best interest at heart while taking factors such as upbringing, health, education, and well-being as significant factors. 

Here, the court provides custody for one parent or another based on the abovementioned parameters. The noncustodial parent can visit the child to keep the relationship alive. The parent’s right to access the information could thus be considered, as it makes custodial parents accountable for their children. Nevertheless, in this case, the courts will determine the visitation schedule. Granting access rights to both parents makes it possible for the child to receive a loving and caring feeling from both of them.


Child custody remains a sensitive and complex issue arising from parental separation. Judicial decisions typically seek a middle ground, balancing various legal perspectives. Despite controversies between religious laws and state-enacted uniform legislation, safeguarding the child’s future remains paramount. Any legal impediments hindering the child’s welfare require prompt acknowledgment and rectification, ensuring the child’s well-being and social security remain at the forefront of custody proceedings.

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