The issue of “Child Custody” crops up during a divorce or judicial separation. When a couple decides to go separate way by dissolving their marriage, the first issue they need to be addressed is the custody and maintenance of the children.

In the Legal terms, issue of child custody is a Kind of process of allotting a right to one of the parent to have over the other regarding their child custody either during or after the decree of divorce or judicial separation is passed by the court.


In India, the rules and Provision for child custody depend on the religion of the child and parents. The child custody in India is governed by the personal law of the child along with the guardians and wards acts, 1890.

According to the Guardians and wards Acts, it’s a process of controlling, caring and maintenance of the child less than 18 years of age by the custodial parent under set parameters like financial security or understanding and relation with child, etc., these rights have been granted by the courts.


The Indian Judiciary allows parents to seek child custody as per it below mentioned types:

  • Physical custody: In physical custody, the court declares that a child lives with the custodial parent and undertakes all the day to day activities.
  • Joint Physical custody: This type of custody evolved recently in which the child lives with both the parents for a significant time period. In such a time period, both parents come to be the consensus of caretaking the child or both parents have equal rights on their child.
  • Third party custody: In third-party custody, the court granted all the rights to the third party. Thus, none of the biological parents have any rights to the child.
  • Sole Custody: In sole custody, whereas, one parent is declared unfit by the court with obvious reason such as abusive, unstable, violent or incapable in nature. Therefore, the entire rights to live with the child lies in the hands of one parent only.


According to the Indian Law, the welfare of the child is given more importance than considering the whims and fancies of the parents. Some aspects of Indian custody of the child law vary depending on which religion you belong to and there is no automatic transfer of custody in the event of judicial separation; regardless of religion, custody affairs are resolved by the courts.

In India, Courts usually have given custody of young children to the mother, because on the grounds that ‘children of tender years’ cannot survive without maternal affection. There are some specified personal law, custody of the child matters in India are governed by the Guardians and Wards Act 1890 (GAWA), which is applicable to all religions in India.

Children’s preferences for custody above the age of 9 years are given a chance of choosing their custodial parent. Generally, the custody of a small child is given to the mother, whereas, custody of older boys may be given to the father, and of older girls to the mother. Therefore, courts also consider specific personal laws while giving their judgments.


The Hindu laws are applicable only if both parties are Hindus. The reforms and regulations set for getting custody of child rights in the following Acts:

  • Under Hindu law, the custody of a Hindu child is governed by the Guardian and Wards Act, 1890 read Hindu Minority and Guardianship Act, 1956.
  • As per the Hindu Minority and Guardianship Act, 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 fixed rule whereas, is primarily based on the child’s interest. Therefore, the choice of a child above the age of nine is considered.
  • When the child is illegitimate then the custody shall be with the mother itself.
  • In case, both parents are not willing to take the custody of the child or if the court thinks fit that the welfare of the child then the court allotted the custody of a Hindu child to the third party.
  • In case, if neither the parents nor any of the relatives of the child are initiating to take the custody of the child then the court by itself shall find the appropriate party who could take the custody of the Hindu child.
  • A person shall not be given the custody of a Hindu child if he has ceased to be in Hindu religion, but later, he has converted to any other religion and no longer remains a Hindu.


Under Muslim law the custody of a child is known as “Hizanat”, that means the care of the infant. Muslim law considers that only the mother holds the ultimate right to seek her custody of the child as per the Rights of Hizanat as long she has not convicted any offense or found guilty of any misconduct. Whereas, the father’s right of Hizanat is applicable only in the absence of an able mother.

  • As per Muslim law, the custody of a Muslim child is with the mother until he has attained the age of 7 years for a boy whereas for a girl when she has attained the age of majority.
  • A party shall not be given the custody of a Muslim child if that person is not of a sound mind.
  • A party who lives in such a place, that would not be appropriate for the welfare of the children or is leading to an immoral life then the court shall not be allowed to keep the child under his/her custody.


There are no prescribed laws for custody of the child in the Christian Laws but issues are sorted by the provisions of the Indian Divorce Act, 1869. Section 41,42,43 deals with the powers which are conferred to the court regarding the Christian custody of the child. In case if the divorce is inevitable or acrimonious battle cannot be the option to resolve the issue of child custody then the child of that child only implies to whom the child will physically reside. Therefore, both parents continue to be natural guardians.


eStartIndia Team

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