Child Custody Rights of Indian Parents

Last Updated at: Apr 01, 2020
Child custody rights of Indian parents


1956 Hindu Minority and Guardianship Act, which specifies that the father is a Hindu minor’s natural guardian. This means all legal decisions regarding a child’s life, or even when you have to sign a contract, the mother can’t do that on behalf of the infant.


When a couple decides to go separate ways by dissolving their marriage, the first issue to be addressed is the custody and maintenance of the children. After a divorce or judicial separation, the children need to be given a definite place of residence with either of the parents in case of children below the age of 18 years. Every parent has certain rights and duties towards their children, which becomes a dilemma once the couple decides to divorce. Parental custody is one of the issues that is greatly tormenting parents as well as the children and each parent tries their best to gain legal parental custody.

Under the Indian Law, the welfare of the child is given more importance than considering the whims and fancies of the parents. The parent who can provide the child with better financial support and most fit for the good upbringing of the child will be given judicial custody. This reduces the probability of predicting as to which parent might most likely have child custody. However, the custody of children below the age of 5 years is by default given to the mother unless the mother is proven to be unfit for raising the child. Children above the age of 9 years are given a chance of choosing their custodial parent. Later, by introducing various types of custody an equal opportunity is given to the father to obtain the custody of the child.

Get Legal Advice from Experts

Types of child custody

  1.  Physical custody: The court declares either of the parent to be the custodial parent and the child lives with them thereafter.
  2.  Joint Physical Custody: This type of custody evolved recently when both the parents come to a consensus of caretaking the child, where the legal custody lies with both the parents but the physical custody is overtaken by either of the parents, making them the primary caretaker.
  3. Sole custody: In cases where one parent is declared unfit by the court for obvious reasons and so the complete custody of the child lies with the other parent by default.
  4.  Third-party custody: Neither parents are given custody of the child but the court diverts the rights to a third party.

Legal provisions for parental custody

The Guardians and Wards Act, 1890 is the common law that provides remedies for parents undergoing custody battles after divorce. The regulations and redressal for custodial issues of parents universally fall under the ambit of this act. The act pertains to general laws irrespective of the religion of the parents. However, India being a secular state, has its own personal laws governing people of various religions according to their customs as follows

Custody under Hindu Laws

The Hindu Laws are applicable only if both the parents are Hindus. The reforms and regulations set for gaining custodial rights under the Hindu laws are prescribed in three different acts:

  • Section 26 of Hindu Marriage Act, 1955 bestows the authority of passing interim orders, judgments, amendments, etc. with respect to the child’s maintenance and can dispose of the pending decree within 60 days from the date of service of notice to the courts.
  • Hindu Minority and Guardianship Act, 1956 declares that only biological Hindu parents have the rights to seek the custody of their minor child.

Custody under Muslim Law

According to the Muslim law, only the mother has sole custody of the children under the Right of Hizanat unless she is proven guilty of misconduct. The father is given the Right of Hizanat only in the absence of an able mother.

Custody under Christian laws

There are no prescribed laws for child custody in the Christian laws but the issues are sorted by Section 41 of the Indian Divorce Act,1869.

The couples, however, have an option of choosing to be protected under the Special Marriages Act. Section 38 of Special Marriages Act, 1954 validates the child’s custody in cases where the parents belong to different religions or have taken a court marriage and explains the powers of the court over providing judicial custody.


As times change, so does the mindset of the people. The courts have started to consider the custody disputes as a right of the child rather than the right of the parent. The best interests of the children are given at most importance while resolving a custodial right dispute. The child support provided by one of the parents can be changed by the courts as per the welfare of the children, as the court is the parents patriae, i.e. the ultimate guardian. Parents can agree to make the payments in either full lump settlements or staggered payments. Once the divorce is granted, the court becomes solely responsible for the children and any decision made thereafter is done for the best interest of the child.