Custody of Child In Divorce Matters

The child’s custody mostly becomes a problem at the time of divorce to be determined by the court to resolve the issue. The laws and issues related to a child’s custody rely on the child’s and parents’ religion. In India, a child’s custody is regulated by the child’s personal laws, as well as the Guardians and Wards Act, 1890. The Guardians and Wards Act of 1890 extends to all citizens of the country. In all the cases, the court focuses on the child’s welfare and not on the arguments presented before the court by the parents of that child.

The court keeping in mind the personal laws and the guardianship and ward act decides the suitable guardian/parent for the child. In divorce cases, only one parent is granted custody of the children it doesn’t mean that the other parent can’t be in touch or meet the child. In India, the courts ensure the child gets both parents’ attention and affection.

In case both the parents are not there due to the operation of some policies or are now deceased in such a case, the maternal or paternal grandparents or any other relatives may demand the child’s custody.

Kinds of custody

  • Physical custody implies that the child is residing with one parent who has the non-custodial parent’s “visiting rights”.The main objective is to give the child a better quality of life in a secure and enriching atmosphere and also to ensure that the child in his or her early years is not barred of the other parent’s affections.
  • Joint custody refers to when both the parents are granted custody of the child. It is identical to sole custody and can be provided as joint legal custody or joint physical custody. The child’s rotation between parents may differ from a specific day, or a week, or maybe even a month. This is helpful for the child as then both the parents would get the attention and the parents would also get to be part of the life of their child.
  • Legal custody implies that the parent who gets custody has the freedom to make certain choices about the child’s wellbeing. Without informing the other parent, the parent with legal custody could make the decisions regarding a child’s education, health care, and religion. In most of divorce cases, legal custody is given to both parents. But in the cases in which there is no mutual agreement and the situation between the parents is not good then the court provides legal custody to either of the one parents.[1]

Child custody under different laws in India

Hindu law

The Guardian and Wards Act, 1890 interpreted with the Hindu Minority and Guardianship Act, 1956 regulates the custody of a Hindu child. The meaning of a Hindu also includes Jains, Buddhists, and Sikhs. According to the Hindu Minority and Guardianship Act, 1956, the mother is the original guardian until the child attain the age of 5 years.

Section 26 of the Hindu Marriage Act 1955- It is concerned about child maintenance, caring, and schooling but only when both the parents obey the Hindu religion, then only the child’s custody is validated. In case the parents or any other close relatives of the child are not initiating to claim the custody of the child then the court can find an appropriate person and provide him the custody of the child.

Muslim law

Muslim law states that the mother has the right to claim his/her child custody according to the Hizanat Right only if she is not found guilty of any wrongdoing. Father also has a hizanat right i.e. Upon the child’s completion of age up to which mother or other females are eligible for custody. In the absence of a mother or other females getting the benefit of hizanat of a minor child. The father has custody of a child until the boy has reached the age of 7 years and the girl has attained puberty as if the father is deemed to be the natural guardian.

Christian law

In the case of a Christian child’s custody, it is dealt with under the Indian Divorce Act, 1869, also with Guardians and Wards Act, 1890. The Act specifies that in the case of religions that do not have personal child custody rules, the decisions will be implemented by the courts under the powers provided by Section 41-43 of the Act. The custody of the child is provided to a person who can serve the child in a better way and would be a better guardian for the child and the claim for custody can be denied if both the parents are incapable of giving a proper life to the child.

Parsi law

The issue pertaining to child custody is regulated under the provisions of the Guardians and Wards Act, 1890. The main objective according to Parsi law is the welfare or well-being of the child. The court orders are also given keeping in mind the welfare of the child. If the welfare of the child is at risk, then no custom or religious issue should be considered.[2]



This Article Written by Ayushman Patnaik, Student of Maharaja Agrasen Institute Of Management Studies (Law Department).

Also Read – Key Aspects To Be Taken Care Of Before Filing For Divorce

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