“CHILD CUSTODY IN INDIA, by Eksha Sharma, at Lexcliq.”




                                                                                                                            By: Eksha Sharma

Child custody is a legal term regarding guardianship which is used to describe the legal and practical relationship between a parent or guardian and a child in that person’s care. Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide and care for the child. This law arises when a marriage comes to an end and couples want to separate from each other. In this situation, the only person who suffers is the child or children born out of the marriage.  Married parents normally have joint legal and physical custody of their children.


The law governing custody of children is closely linked with that of guardianship. Custody is a narrower concept relating to the upbringing and day to day care and control of the minor. Decisions about child custody typically arise in proceedings involving divorce, annulment, separation, adoption or parental death. In most jurisdictions’ child custody is determined in accordance with the best interests of the child standard. Although the term “custody” is not defined in any Indian Family Law, whether secular or religious


The Courts or Indian Law before giving the custody of the child to the mother or father or guardian, keeps the welfare of the child as the most important factor of consideration. Under Indian law, maximum importance is given to the best interests of the child and so either parent does not have a clear primacy to be granted the custody of the child.


  • Joint Physical Custody: A new revolutionary concept has evolved while negotiating divorce settlements. In this type of custody both the parents will have legal custody, but one will have the opportunity to reside with the child/ children, called the physical custody and other will be the child’s primary caretaker.
  • Sole Custody: One parent/ guardian who is been proven to be an abusive and unfit parent/guardian and the other parent is granted custody.
  • Third – Party Custody: Neither of the biological parents is given custody of the child. Instead, child custody is granted to a third person by the court.
  • Legal Custody: Legal custody of a child differs from physical custody in more ways than one but the fundamental difference between the two is that legal custody does not necessarily entail having the child with you or being with your child at all times. Legal custody of a child basically means that the parent granted the legal custody takes every decision for the child. From where will the child study and what doctor will the child be treated by is part of legal custody. In most instances, courts grant legal custody to both the parents together but if the divorce is messy and the parents are, apparently, never going to agree with each other, the court grants the legal custody of the child to one parent.



Section 38 of the Special Marriage Act 1954:

In this the custody of the child validates only in case both of the spouse has different religion or undertaken a court marriage then the court can pass orders, judgement, etc. at any point in the time.


Section 26 of the Hindu Marriage Act 1955:

It deals with the maintenance, caring, and education of the child, and only when both the parent follows the Hindu Religion, the custody of the child gets validated.


Under Muslim Law:

Only the mother holds the ultimate right to seek her child/children’s custody under the Right of Hizanat as long as she is not convicted or found guilty of any misconduct. The father’s right of Hizanat is applicable only in the absence of an able mother.


Guardians and Wards Act 1890:

This act is a secular law regulating questions of guardianship and custody for all children within the territory of India, irrespective of their religion.

The Hindu Minority and Guardianship act:



“A chid is not any game that whosoever wins the toss wins the child custody”.  Child custody is very sensitive and emotional concerned topic. Under some personal laws, separate provisions are available to deal with the issues of child custody. Whereas, the Guardianship and Wards Act, 1890 is applicable to all minors of all castes and creeds.


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