Who Gets the Custody of a Child in a Divorce in India

Are you looking to know who gets the custody of a child in a divorce in India? This article has all information & answers you’re looking for

Who Gets the Custody of a Child in a Divorce in India
Who Gets the Custody of a Child in a Divorce in India

Child custody is a topic that frequently arises in situations involving children, such as divorces, annulments, and legal actions. However, matters affecting the kid’s custody will be decided based on what the courts consider to be the best interests of the child.

In the event of a divorce, the court with jurisdiction and over proceedings will decide which parent will have custody of the children. In most circumstances, parents with minor children (those under the age of 18) must seek custody if they divorce or terminate their marriage.

Who Is Entitled to Child Custody?

A child’s custody could be claimed by either the mother or the father. Mostly in the event when both parents are absent from the scene owing to the execution of other laws or the death of one of the parents, the maternal or paternal grandparents or even other relations might claim guardianship of the kid solely out of sympathy for the child. In many circumstances, the court designates a third party as the child’s guardian.

Who Has A Priority Claim To A Child’s Custody?

The Hon’ble Supreme Court and other Indian courts have consistently stated that the main factor for the custody of a minor is the minor’s welfare, regardless of the claims of the parties to the custody of children.
Custody of a child under the age of five is normally given to the mother, according to Hindu and secular law. Fathers are more likely to receive custody of older boys, whereas mothers are more likely to get custody of older females. Furthermore, the court decides the child’s choices from over the age of nine, as well as the child’s best interests. When a woman/man is proven to be abusing and neglecting her/his child, she/he is denied custody.

Hindu Law on Custody

Jains, Buddhists, and Sikhs have all been defined as Hindus, and hence the law enacted for Hindus also applies to people of these faiths. The Hindu Minority and Guardianship Act of 1956, as well as the Guardians and Wards Act of 1890, deal with a Hindu child’s entitlement to custody. The two statutes must be read together, and it is not allowed to enforce one at the expense of the other.

Muslim Law on Custody

Only the mother has the right to seek custody of her child under Muslim law, known as the Right of Hizanat unless she is proved not guilty of any offense. Under Muslim law, a child’s custody remains with his or her mother until the child reaches the age of seven for a boy and the age of puberty or the majority for a girl. Because the father is regarded as the natural guardian, custody of the kid remains with him until the boy reaches the age of seven and the female reaches the age of majority or puberty.

Christian Law on Custody

The Christian Church must follow the norms and procedures specified in Section 41 of the Divorce Act of 1869 when it comes to child custody. In addition, when a divorce judgement is entered, Sections 42 and 43 of the same Act allow the court the jurisdiction to decide on the child’s custody. The kid is given to the person who serves better and is proven to be a good guardian for the child, and the claim can even be refused if the court determines that both parents are incapable of providing the child with a healthy environment.

Types of Child Custody

In India, there are three various types of child custody arranged. A competent judge orders child custody in either of the three ways:

Physical Custody

Physical Custody is the first step in the process of becoming a parent.
When a parent is granted physical custody, the minor is placed under that parent’s guardianship, with the other parent having periodic contact and visitation. The goal of a custody award like this is to provide a better life for the child in a safe and fulfilling setting while also ensuring that the youngster does not miss out on the other parent’s attention over his or her early life.

Joint Custody

Given the fact that Indian courts believe it is ideal for a minor’s welfare, joint custody does not imply that both parents must live together because of the child. Joint custody indicates that the child will be cared for by both parents in turn, with the child remaining in their custody at all times. The child’s cycle between parents can last a few days, a week, or even a month. This is advantageous to the child because, on the one hand, the youngster receives both parents’ attention, and on the other side, parents get involved in their child’s life.

Legal Custody

Legal custody of a kid does not always indicate that the child will live with the mom and dad or vice versa. It essentially implies that the parents have been granted legal custody of their child and are able to make all decisions regarding the child’s education, medical treatment, and other matters. Legal custody is usually granted to both parents together, however, in some circumstances where the divorce is tumultuous and the parents cannot agree, the court may award legal custody to either parent.


Personal laws, as well as The Guardians and Wards Act, 1890, decide a child’s custody in India. One of the most vital points is to allocate custody of a child in order to seek welfare; then, if required, other personal law conventions and traditions can be set aside. The court gives priority to the parents and the child, but the court makes the final decision on the child’s custody. I hope after reading this article: Who Gets the Custody of a Child in a Divorce in India, you have got the answer to your question. if you think this article was informative, feel free to share it with your friends. Also you can find best divorce lawyer in bangalore here

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