This post has been self-published on Youth Ki Awaaz by Khadeeja Khalil. Just like them, anyone can publish on Youth Ki Awaaz.

Everything You Need To Know About Child Custody Laws In India

While a divorce can be a step in the right direction for the couple involved, it can be emotionally challenging for children to accept the situation. Generally, child custody is decided among the parents before they petition the court for mutual consent divorce. However, a problem arises when the parents cannot come to an agreement on the custody of the child after divorce. Keeping in mind that divorce cases are long drawn, what shall happen to the child in the duration of the court case is a pertinent question.

Usually, the courts decide the matter of child custody at the earliest as the welfare of the child is a top priority. All cases of child custody are treated on an individual case-by-case basis. This ensures that the child is not put in the hands of an unfit parent just because the law says so. In this, the courts have the discretion to choose what is best for the child.

In the case of child custody, there are different kinds of custody that can be awarded by the Indian courts to parents:

1. Physical custody of child – The physical custody of the child means that the child shall live with the parent who is granted the physical custody. The other parent is usually given visitation rights over the weekend. The parent who has the physical custody is usually the primary guardian.

2. Legal custody of child – In legal custody, the parents have the right to make important decisions regarding educational and religious upbringing, financial support and medical care that affect the welfare of the child. This decision making is generally shared among parents and the expenses and maintenance are borne by both the parents.

3. Joint custody of child – Recently, a new concept of joint custody has been evolving which gives both parents equal physical and legal custody. Though there are no legal provisions on shared parenting, the judiciary has been taking steps to bring about joint custody in India. Through this, children of separated parents can get the benefit of having both parents as active members in their life thus doing away with the concept of primary guardianship.

General Law For Child Custody Cases

The court has the right to appoint a guardian for a minor’s person or property or both under the Guardians and Wards Act, 1890. A ‘minor’ is considered to be a person who is generally under the age of 18; physically and intellectually imperfect and immature and hence needing someone’s protection. This law is applicable to all religions and is considered in conjunction with specific religious laws.

The court considers the following aspects while deciding guardianship:

1. The personal law to which the minor is subject;

2. The age, sex and religion of the minor;

3. The character and capacity of the proposed guardian and his nearness of kin to the minor;

4. The wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property;

5. If the minor is old enough to form an intelligent preference, the court may consider that preference;

6. The court shall not appoint or declare any person to be a guardian against his will;

7. The courts prefer to keep children together and award custody of both together when the issue of custody involves two or more siblings;

8. The child’s comfort, health, material, intellectual, moral and spiritual welfare.

Generally, the courts give custody of a small child to the mother, and older boys and girls to the father and mother respectively. For older children, the courts also take into consideration the wishes of the children. However, none of this is set in stone and if the opposite party can prove that the parent is unfit to be the legal physical guardian of the child, then the courts will rule accordingly.

Child Custody Under Hindu Law

Under the Hindu Minority and Guardianship Act, 1956, the custody of all children below the age of 5 years is given to the mother. The custody of boys and unmarried daughters is given to the father. Custody of illegitimate children is given to the mother first and then the father while the guardianship of a married girl is given to her husband. The Hindu Minority and Guardianship Act, 1956 exists in harmony with the Guardians and Wards Act, 1890.

In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother. The Supreme Court has ruled saying that in such cases the child should not be treated as ‘chattel’. It is only the child’s welfare which is the focal point for consideration.

Child Custody Under Muslim Law

Under Muslim personal law, the right to a child’s custody is given solely to a mother unless she is seen as an unfit guardian. This is called the right of hizanat and can be enforced against any person including the father.

One thing must be kept in mind is that the mother’s right of child custody is not absolute and exists only if such right is beneficial and in the interest of her children. Thus, the welfare of the children is at the forefront of Muslim law.

Child Custody Under Christian Law

The Christian laws do not have any special mention about child custody rights. Hence the Indian Divorce Act, 1869, becomes applicable for all matters pertaining to Christian children and their guardianship. As per Section 41 of this said Act, the courts have the right to pass orders as to the custody, education and maintenance of Christian children.

In one case, the Supreme Court held that all orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the ward.

Child Custody Under Parsi Law

The Parsis also do not have any specific laws pertaining to child custody. Hence all such issues are addressed by the Guardians and Wards Act, 1890. Also, under the Parsi Marriage and Divorce Act, 1936, the wife can claim for maintenance to support their minor children. Under this Act, the court has to pass an order within 60 days related to custody of Parsi children and their guardianship.

In a recent case, both the parents were given custody for sustainable growth of the 12-year-old boy. The court directed the minor to be in the physical custody of the father from January 1 to June 30 and from July 1 to December 31 with his mother. Both the parents were given visitation rights on weekends when the child was with the other parent. The expenditure of maintenance of the child was to be split equally among the parents.

This post was first published on MyLegalWork and Medium.

You must be to comment.

More from Khadeeja Khalil

Similar Posts

By Our Voix

By Our Voix

By Charkha features

Wondering what to write about?

Here are some topics to get you started

Share your details to download the report.









We promise not to spam or send irrelevant information.

Share your details to download the report.









We promise not to spam or send irrelevant information.

An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

Share your details to download the report.









We promise not to spam or send irrelevant information.

A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

Sign up for the Youth Ki Awaaz Prime Ministerial Brief below