Child custody disputes are highly emotional court cases that have a big influence on both parents’ life and, most crucially, the kids’ wellbeing. The legal framework in India that governs child custody is complex and puts the child’s best interests first.Traditionally, custody battles have often inclined in favor of mothers, but contemporary shifts in societal norms and legal precedents are transforming this landscape.


In India, personal laws like the Guardianship and Wards Act, 1890, the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954 regulate the delicate and intricate topic of child custody. Because child custody is such a delicate subject, the child’s wellbeing should always come first in any child custody dispute. Thus, rather than focusing just on the parents’ wishes or claims, the court must consider what is best for the child’s physical, emotional, and educational well-being. India’s laws are crafted with the well-being of children at their core. In recent years, India’s child custody laws have experienced a substantial transformation that reflects the intricate relationship between tradition, changing societal conventions, and the primary concern for the kid’s welfare. 

What does custody of a child mean?

Having legal custody of a child entails both the obligation and the right to raise and take care of that child. Individuals who hold custody of a child are entrusted with significant obligations and liabilities, including but not limited to education, religious upbringing, healthcare, legal counsel, and furnishing the child with basic needs like food, clothes, shelter, and transportation. The parent or guardian with custodial rights must also ensure the child’s financial stability and offer the correct environment for the child’s physical, mental, and emotional growth. Usually, the other parent only has the right to visit and see the child when one of the parents is assigned these caregiving duties. When handling custody matters, the courts must render a decision that takes the child’s welfare and best interests into consideration. 

Forms of Child Custody available in India:

When a child primarily resides with one of the parents then it is known as physical custody. It involves day-to-day care and upbringing of the child, including providing food, shelter, clothing, supervision, etc. Physical custody can be of two types – Sole and Joint

Sole physical custody is when only one parent has the primary responsibility for the child’s physical care and upbringing, whereas joint physical custody is when both parents share the responsibility for the child’s physical care and upbringing with the child dividing their time between both households. 

When a parent has the right to make major decisions about the child’s life, such as education, healthcare, religious upbringing and significant financial decisions it is

known as legal custody. Legal custody can also be awarded as Sole and Joint Legal Custody. Sole legal custody is where one parent has the sole right to make major decisions about the child’s life where as in a joint legal custody, both parents share the right to make major decisions about the child’s life, jointly consulting and reaching decisions together. 

In a shared custody arrangement both the parents are involved in both the physical and legal custody of the child. The child typically spends roughly equal amounts of time with each parent, with the specific schedule being determined by the parents or the court. 

In some cases, the court may award custody of the child to a third party, such as a grandparent, aunt, uncle or other relative, if it is determined that this arrangement is in the best interest of the child. 

The parent who does not have primary physical custody typically has the right to visit and spend time with the child according to a schedule agreed upon by the parents or the court. The best interest of the child is the primary factor considered by courts when determining the custody arrangements. The court has to consider the age and maturity of the child as well as the quality of relationship the child has with each parent.

There are some additional forms of custody that not a lot of people are aware of as it is important to know that custody arrangements are unique to each family and highly sensitive. First is an open communication custody in this kind of arrangement parents are encouraged to communicate openly and cooperatively regarding the child’s care and upbringing. Second type of arrangement is in which a mediator can help parents reach a mutually agreeable custody arrangement outside of court. Third kind of arrangement is when there is a high-conflict cases, a court may appoint a parental coordinator to assist parents in communication and resolving disputes.  

The laws which govern the Custody of Child in India

 Custody Laws under the Hindu Marriage Act, 1955
Hindu Marriage Act, 1955 (HMA):

Types of Custody: Sole Custody, Joint Custody.

Key Sections:

– Section 6: Court’s discretion in deciding custody based on child welfare.

– Section 25: Custody petitions due to neglect, cruelty, or abandonment.

– Section 26: Guardian ad litem for child representation.

– Section 27: Court can modify custody arrangements.

Custody Considerations: Child’s age, emotional attachment, parents’ mental and physical health, financial stability, and evidence of harmful behavior.

Special Marriage Act, 1954 (SMA):

Key Section:

– Section 38: Court can order custody, maintenance, and education of minors.

Custody Considerations: Child’s welfare, with potential interim orders for custody and visitation. Final decrees can be modified upon application.

Types of Custody:

– Joint Legal Custody: Both parents share decision-making.

– Physical Custody: Sole custody with visitation or joint physical custody.

Guardianship and Wards Act, 1890 (GWA):

Types of Guardianship:

– Guardian of the person: Custody, care, and education of the child.

– Guardian of the property: Management of the child’s assets.

Appointment of Guardians: By parents, courts, or Collector (in specific cases).

– Section 7: Court can make temporary custody arrangements.

– Section 8: Court can appoint guardians.

– Section 17: Court can remove guardians for misconduct.

– Section 25: Guardians can remove wards from jurisdiction with permission.

The controversy behind child custody in India, what can be improved?

1. Gender Bias:

Indian courts and societal norms often favor mothers in custody disputes, assuming they are naturally more nurturing. This bias can marginalize fathers, making it harder for them to gain custody or shared parenting rights.

2. Religious vs. Uniform Legislation:

Different religious personal laws govern child custody, leading to inconsistency and confusion across communities. The absence of a single, unified legal framework for all religions is a source of ongoing debate and unequal treatment.

3. Best Interests of the Child:

The guiding principle for custody decisions is the child’s “best interests,” but this concept is subjective and varies based on different interpretations by judges, parents, and social workers.

4. Resource Constraints:

India’s legal system is often backlogged, leading to delays in custody cases. There’s also a lack of resources for legal aid, child welfare assessments, and counseling, which hampers fair and timely outcomes.

5. Parental Alienation Syndrome:

A parent may manipulate a child against the other parent, causing emotional harm and undermining healthy parent-child relationships. Identifying and addressing this issue requires specialized expertise.

6. Awareness and Education Gaps:

Many parents are unaware of their rights and legal options in custody disputes, making them vulnerable to exploitation and weak in negotiations.

7. Socio-Economic Challenges:

Factors like poverty, unstable housing, and limited access to education and healthcare can impact a parent’s capacity to provide a nurturing environment. Although not directly related to parental fitness, these issues often influence custody rulings.

8. Cultural Pressures:

Family and societal expectations can drive parents to make decisions that aren’t in the best interests of the child, leading to compromises driven by cultural or familial pressures.

Steps to Address Controversies:

Reform Personal Laws: Establish a uniform civil code for child custody that offers equal rights and opportunities for both parents, regardless of religion.

Judicial Training: Judges should receive training on gender bias, cultural influences, and the impact of parental alienation on children.

Increased Legal Aid: Expand legal assistance to help marginalized or low-income parents navigate custody disputes.

Awareness Campaigns: Promote public awareness about child custody rights, legal options, and best co-parenting practices.

Strengthen Child Welfare Systems: Boost resources for child welfare assessments, counseling, and support for children affected by custody transitions.

By focusing on these approaches, India can work toward a more balanced and child-centered custody system, ultimately promoting the welfare and best interests of children involved in these disputes.


Child custody is a complex and sensitive issue, especially during parental separation or divorce. Determining custody often involves finding a balance that judges must establish, taking into account differing religious laws and uniform state legislation. Despite these legal complexities, the child’s welfare and social security should always be the central focus. Legal disputes should not compromise the child’s future; any conflicting aspects in the law should be resolved with the child’s best interests in mind, ensuring their well-being is prioritized. Ultimately, the aim is to ensure that custody arrangements promote a stable and supportive environment for the child to thrive.

Leave a Reply

Your email address will not be published. Required fields are marked *

This field is required.

This field is required.


The following disclaimer governs the use of this website (“Website”) and the services provided by the Law offices of Kr. Vivek Tanwar Advocate & Associates in accordance with the laws of India. By accessing or using this Website, you acknowledge and agree to the terms and conditions stated in this disclaimer.

The information provided on this Website is for general informational purposes only and should not be considered as legal advice or relied upon as such. The content of this Website is not intended to create, and receipt of it does not constitute, an attorney-client relationship between you and the Law Firm. Any reliance on the information provided on this Website is done at your own risk.

The Law Firm makes no representations or warranties of any kind, express or implied, regarding the accuracy, completeness, reliability, or suitability of the information contained on this Website.

The Law Firm disclaims all liability for any errors or omissions in the content of this Website or for any actions taken in reliance on the information provided herein. The information contained in this website, should not be construed as an act of solicitation of work or advertisement in any manner.