This law arises when a marriage comes to an end and couples want to separate from each other. In this situation, the only person who suffers is the child or children born out of the marriage. The Courts or Indian Law before giving the custody of the child to the mother or father, keeps the welfare of the child as the most important factor of consideration. Under Indian law, maximum importance is given to the best interests of the child and so either parent does not have a clear primacy to be granted the custody of the child.


Before deciding any case of child custody, Indian Courts keep the factors of the welfare of a child in mind which includes:

  1. Safe-keeping of the child
  2. Ethical upbringing of the child
  3. Good education to be imparted
  4. Economic well-being of the guardian


In child custody, mother and father, both have an equal right to custody. However, it is a question before the Court that whom to give the custody of the child. Statutes are conflicting when it comes to personal laws as opposed to secular enactment in the form of The Guardian and Wards Act, 1890, the court of competent jurisdiction strives to strike a balance between the two, all the while holding the welfare of the child as the paramount importance. However, mere custody of the child to one parent does not mean that the other parent cannot see or be in contact with the child. The Indian Courts are very strict in the matter that a child should the affection of both, father and mother. The other parent gets the visitation right, but under some considerations determined by the Court.

Under secular law as well as Hindu law, The mother usually gets custody of the minor child, under the age of five. Fathers get custody of older boys and mothers of older girls, but it is not a strict rule and is primarily decided based on the child’s interests. The choice of a child above the age of nine is considered. A mother who is proven to neglect or ill-treat the child is not given custody.


Primary, a court of competent jurisdiction in India orders the custody of a child in the following three forms:


    This kind of custody is given to a parent with a right of visitation and periodical interaction with the other parent. In this custody, Courts ensure that the child will get the affection from both the parents. The aim behind such a custody award is that the child lives in a safe and fulfilling environment but is also not deprived of the affection of the other parent during his formative years.


    This custody does not mean that both the parents will live together because of the child, even though Indian Courts believe it is the best solution for all. Joint Custody simply means both the parents will take turns keeping the child with them. The rotation of the child may vary from certain days, weeks, or months. This not only benefits the child as the affection of both the parents is not lost and the parents also get to be a part of their child’s life in those young years.


    Legal custody of a child differs from physical custody in more ways than one but the fundamental difference between the two is that legal custody does not necessarily entail having the child with you or being with your child at all times. Legal custody of a child basically means that the parent granted the legal custody takes every decision for the child. From where will the child study and what doctor will the child be treated by is part of legal custody. In most instances, courts grant legal custody to both the parents together but if the divorce is messy and the parents are, apparently, never going to agree with each other, the court grants the legal custody of the child to one parent.


Under Muslim Law 

Only the mother holds the ultimate right to seek her child/children’s custody under the Right of Hizanat as long as she is not convicted or found guilty of any misconduct. The father’s right of Hizanat is applicable only in the absence of an able mother.

Under Christian Law

If divorce is inevitable, acrimonious battles cannot be the option to settle issues of child custody and access. Custody of a child only implies to whom the child will physically reside with. Both parents continue to be natural guardians.

Unless and until the order of the court specifically mention conditions similar to the ones discussed above, the parent who is awarded the custody of a child is not just awarded the physical custody but also the legal custody. Any other type of custody will be specifically mentioned in the order of a court and made clear to both the parents. While dealing with a case of custody of a child removed by a parent from another country to India in contravention of the orders of the court where the parties had set up their matrimonial home, the Hon’ble Supreme Court has held that a child can seek refuge under the parents patriae jurisdiction of the Courts in India. Further, the Apex Court has noted that India is not yet a signatory to the Hague Convention of 1980 on “Civil Aspects of International Child Abduction”, and Courts in India must consider the question on merits bearing the welfare of the child as of paramount importance.


The consideration of paramount importance in a proceeding for the custody of a minor is the welfare of the child. No legal right, preferential right or any other right holds more importance than the well-being of the child. Any court of law grants custody to that party who can assure the court that the welfare of the child best lies with them.

Author: Shivam Bansal,
Symbiosis law School, Noida - 2nd Year

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