How does child custody work when a couple gets divorced?

Last Updated at: Dec 10, 2020
How does child custody work when a couple gets divorced_
In the midst of the pandemic, there has also been a surge in the number of cases related to divorce and child custody. Post-corona, Mumbai saw a nearly three-fold increase in cases pertaining to divorce and women-related issues being filed. From an average of 1,280 cases in a month, their numbers went up to 3,480 during the lockdown.


When a couple decides to separate by way of getting a divorce, the most important issue to be addressed is that of 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 they are below the age of 18 years. Every parent has certain rights and duties towards their children, which need to be looked at closely once the couple decides to divorce. Under Indian Law, the welfare of the child is given more importance than the wishes of the parents.

The parent who can provide the child with better financial support and is considered fit for giving the child a good upbringing is usually given custody. In any case, the custody of children below the age of 5 years is naturally given to the mother unless the mother is proven to be unfit for raising the child. Children who are above nine years old have the chance to choose their custodial parent. Later, an equal opportunity is given to the father to obtain custody of the child.

Types of child custody

  1. Physical custody: The court declares either of the parents to be the custodial parent and the child lives with them thereafter.
  2. Joint Physical Custody: This type of custody has come into being recently, wherein both the parents come to a consensus on taking care of the child. The legal custody lies with both the parents but physical custody is taken over by either of the parents, making them the primary caretaker.
  3. Sole custody: This refers to cases where one spouse is declared unfit by the court and thus complete custody lies with the other parent.
  4. 3rd party custody: Neither parent is given custody but the court gives the custodial rights to a third party as it may deem fit.

Legal provisions for parental custody

The Guardians and Wards Act, 1890 is the primary statute that provides remedies for parents undergoing custody battles after divorce. The regulations and redressal for custodial issues of parents universally come under this act. The act pertains to general laws irrespective of the religion of the parents. The personal laws as per each religion are delved into below.

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Custody under Hindu Laws

The regulations set for gaining custodial rights under the Hindu laws are prescribed in three different acts:

  • Section 26 of the Hindu Marriage Act of 1955 gives the authority for passing interim orders, judgments, amendments, and so on. with respect to the child’s maintenance and can dispose of the pending decree within sixty 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 right to seek the custody of their minor child.

Custody under Muslim Law

As per Muslim law, only the mother has custody of the children under the right of Hizanat unless she is proven guilty of misconduct. If there is no able mother, the father is given the right of Hizanat.

Custody under Christian laws

There are no prescribed laws for child custody under Christian laws but the issue is dealt with in Section 41 of the Indian Divorce Act,1869.

The spouses have the option of choosing to be protected under the Special Marriages Act. Section 38 of the Special Marriages Act validates custody in cases where the parents belong to different religions or have gotten a court marriage and elucidates the powers of the court over providing judicial custody.


With changing times, courts have now started to consider custody disputes giving more weightage to the rights of the child rather than the rights of the parent. The best interests of the children are given utmost importance while resolving a custodial 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 parenspatriae, i.e. the ultimate guardian. Once the divorce is granted, the court becomes solely responsible for the children, and any decision made thereafter is taken keeping in mind the best interest of the child.