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Child Custody in India

Child custody is one of the issues that may arise when parents separate or divorce. It concerns the care, residence and upbringing of a child, as well as the arrangements under which the child maintains contact with each parent.

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A child custody lawyer in Mumbai, like Adv. Kanchan Talreja is a powerful support to a parent in understanding the applicable law, preparing custody-related applications and presenting relevant circumstances before the appropriate court.

Custody proceedings are different from disputes between spouses. The court’s primary consideration is the child’s welfare, and arrangements are made in view of the child’s circumstances and needs.

What Is Child Custody?

Child custody refers broadly to the legal and practical arrangements concerning a child’s care and upbringing. It may involve where the child lives, who makes decisions concerning education and healthcare, and how the child maintains contact with the other parent. Custody does not necessarily mean that one parent has no involvement in the child’s life.

Depending on the circumstances, the court may make arrangements concerning:

Physical custody

Accountability for decisions

Visitation or access

Education

Healthcare

Healthcare

Travel

Communication with the child

Financial support

The arrangement depends on the circumstances and the applicable law.

01

Child Custody Laws in India

The child custody laws in India are not contained in a single statute applicable to every family. Depending on the circumstances, custody questions may be considered under laws including the Guardians and Wards Act, 1890  and personal laws applicable to the parents.

These include:

The law governing the marriage may also be relevant. Courts consider the statutory provisions applicable to the particular proceeding together with the circumstances concerning the child. A parent should therefore not assume that a custody rule applicable to one family will necessarily apply in another case.

Which Law Applies to Your Custody Matter?

Custody in India is dealt with under several statutes at once, and which of them applies
depends on your religion and on whether a matrimonial case is already pending.
In every one of them, the welfare of the child is the first consideration.

StatuteApplies toWhat it governs
Guardians and Wards Act, 1890All communitiesAppointment of a guardian. Section 7, the power to appoint;
Section 9, jurisdiction, which lies where the minor ordinarily resides;
Section 17, the matters the court considers; Section 25, custody of a ward.
Hindu Minority and Guardianship Act, 1956Hindus, Buddhists, Jains and SikhsSection 6, natural guardianship, under which custody of a child below five
ordinarily lies with the mother; Section 13, under which the welfare of the
minor is the paramount consideration.
Section 26, Hindu Marriage Act, 1955Parties to a Hindu marriageCustody, maintenance and education of children during a pending matrimonial
proceeding, and after the decree.
Section 38, Special Marriage Act, 1954Parties to a marriage under that ActThe same, in proceedings under that Act.
Section 21, Protection of Women from Domestic Violence Act, 2005An aggrieved womanTemporary custody of a child in a domestic violence proceeding, and visitation.

02

Welfare of the Child

The welfare of the child is a central consideration in custody proceedings.

The court may examine circumstances such as:
✓ The child’s age
✓ Educational needs
✓ Health and medical requirements
✓ Existing living arrangements
✓ Relationship with each parent
✓ Emotional needs
✓ Each parent’s ability to provide care
✓ Stability of the proposed arrangement
✓ The child’s existing routine
✓ Other situations affecting the child’s welfare

A parent’s financial position can be relevant, but financial resources alone do not determine custody.

The court considers the overall circumstances and does not automatically give custody to the parent with higher income.

03

Does the Mother Always Get Custody?

There is no universal rule that a mother must always receive custody of a child after divorce.
Similarly, there is no general rule that custody must automatically be granted to the father.

The court considers the child’s welfare and the facts of the individual matter. The child’s age, existing care arrangements, relationship with each parent and other relevant circumstances may be considered.

Personal law may contain provisions concerning guardianship and custody, but the child’s welfare is of utmost importance.

04

Child Custody After Divorce

Divorce does not automatically determine all questions concerning the children.

Parents may need to address:
✓ Where the child will live
✓ Schooling and education
✓ Medical care
✓ Daily expenses
✓ Visitation
✓ Holidays and festivals
✓ Communication with the other parent
✓ Travel arrangements

These matters may be addressed by agreement between the parents or through court proceedings where an agreement cannot be reached.

05

How to Get Child Custody After Divorce

The process of getting child custody after divorce depends on the circumstances and the existing legal arrangements.

A parent seeking custody may need to establish why the proposed arrangement serves the child’s welfare. Relevant information may include the child’s current living arrangements, education, relationship with each parent and to provide care.

Where there is already a custody order, the appropriate legal procedure may involve seeking modification or other relief rather than starting an entirely new proceeding.

06

Response by the Other Parent

The parent responding to the custody application may present their own account of the circumstances and explain why the requested arrangement is disputed.

The court may consider the material submitted by both parents before deciding the appropriate arrangement.

07

Interim Custody

Custody arrangements may be required while a divorce or custody proceeding is still pending.

A court may consider interim custody or visitation arrangements so that the child’s care and contact with both parents can be addressed during the proceedings.

An interim arrangement is not necessarily the final custody arrangement. The court may reconsider the matter as the case develop or circumstances change.

08

Can a Child Choose Which Parent to Live With?

The views of a child may become relevant depending on the child’s age, maturity and circumstances.

Courts may interact with or consider the wishes of a child where appropriate. However, a child’s preference is not necessarily the only factor considered.

The court continues to consider the child’s overall welfare and the circumstances of both parents.

9

Child Custody and Maintenance
Custody and child maintenance are related but separate legal issues.

A parent may have financial obligations towards a child even where the child primarily lives with the other parent.

Expenses may include:
✓ Education
✓ Healthcare
✓ Food and clothing
✓ Accommodation
✓ Extracurricular activities
✓ Travel

The financial contribution of each parent may be considered according to the applicable law and circumstances.

10 

Relocation of a Child

A parent may wish to move with a child to another city or country after separation.

Relocation can affect schooling, daily care and the child’s relationship with the other parent. It may therefore become an issue in custody proceedings.

Where a court order governs custody or access, the parent may need to consider the order terms before relocating.

International relocation can raise additional questions concerning jurisdiction, travel documents and the other parent’s ability to maintain contact.

11

Child Custody and Domestic Violence

Allegations of domestic violence can affect custody and visitation proceedings where they are relevant to the child’s welfare or safety.

A domestic violence proceeding may involve temporary custody-related relief under the Protection of Women from Domestic Violence Act, 2005.

Custody questions may also arise separately under other family-law proceedings. The applicable legal provisions depend on the circumstances.

An allegation of domestic violence does not by itself determine the final custody arrangement. The court considers the relevant evidence and circumstances.

12

Child Custody When Parents Live Separately

Parents do not necessarily need to live together for both to remain involved in the child’s life.

A custody arrangement may allow one parent to have primary physical care and scheduled visitation or communication for the other.

Where parents agree, a detailed parenting arrangement can reduce uncertainty concerning day-to-day matters. Where agreement is not possible, the court may determine appropriate arrangements.

13

NRI and International Custody Matters

Custody disputes can become more complicated when one parent lives outside India.

Questions may arise concerning:
✓ Jurisdiction

✓ Travel with the child

✓ Passport and immigration issues
✓ Residence in another country
✓ Enforcement of custody orders
✓ Communication and visitation
✓ International relocation
✓Multi-country laws

International custody disputes may also involve laws of more than one country and, in some circumstances, issues under international conventions.

These matters require separate consideration because an order made in one country may raise questions concerning recognition or enforcement in another.

14

Role of a Child Custody Lawyer

A child custody lawyer may assist a parent by reviewing the circumstances, identifying the applicable legal provisions, preparing applications and documents, responding to the other parent’s case and representing the parent during court proceedings.

The lawyer presents the client’s case within the applicable legal framework. Adv. Kanchan Talreja plays an important role for her clients at this stage and provides much-needed support and assurance the client needs. 

Have Questions?

Frequently Asked Questions

Will the mother automatically get custody of the child?

No, there is no automatic rule. Under child custody laws in India, the child's welfare is the paramount consideration (Section 13 of the Hindu Minority and Guardianship Act). Custody of a child under five is ordinarily with the mother (Section 6(a)). For older children, a father can get custody if that is better for the child.

If I move out of the house, will I lose custody of my child?

Moving out does not take away your rights, but courts are slow to disturb an existing arrangement. If you leave without your child, apply for interim custody or access immediately. If you leave with your child, do not cut off the other parent's contact without a court order.

Will the court ask my child who they want to live with?

If your child is old enough to form an intelligent preference, the judge may speak to them, usually privately in chambers (Section 17(3) of the Guardians and Wards Act). Under child custody laws in India, the child's wishes matter, but the child's welfare ultimately decides the case. Courts also watch for one parent turning the child against the other (Vivek Singh v. Romani Singh, 2017).

What visitation rights will the other parent get?

Visitation can include weekend or weekday visits, overnight stays, a share of school holidays and festivals, and regular video calls. The Supreme Court has held that a child has a right to the love and affection of both parents, and that video contact should be ordered where meeting in person is difficult (Yashita Sahu v. State of Rajasthan, 2020).

Where do I file for child custody in Mumbai?

If your divorce is pending, apply in the same case before the Family Court at Bandra (Section 26 of the Hindu Marriage Act). Otherwise, file a petition under the Guardians and Wards Act before the Family Court where your child ordinarily lives (Section 9). Interim custody can be sought at the very start.

Can a custody order be changed later?

Yes. Custody orders are never final, because a child's needs change with age, schooling, relocation or a parent's remarriage. Either parent can apply to modify the order. If a parent does not comply, the court can take action for contempt or order the child to be produced (Section 25 of the Guardians and Wards Act).

Disclaimer: This is general information, not legal advice.

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