Custody of Children in India

Guest post by Pallavi Mohan

Recently, the Bombay High Court granted the custody of a child to his father, after removing him from his grandparent’s custody. What was newsworthy was the fact that the child ran back to the grandparents outside the court’s premises, refusing to go along with the father.

Let us understand how Indian courts decide custody issues.

What is meant by custody of children?

Custody is the right granted to the parents (or guardian) of a child to take care of their needs and look after their interests until the age of 18 years. In the case of the death of a parent/s, custody can rest with the surviving parent or with a guardian(s) appointed by the court. 

In separation/divorce cases, the husband and wife can decide mutually who will have the primary custody of the child, or they can come before the court to get an order for the custody of the child.

How do courts decide who should get custody of a child?

The paramount consideration for a court deciding custody of a child is the best interest and welfare of the child. This means considering whether the parent or guardian can provide the best upbringing to the child, plan for a good education, and ensure the financial security of the child up to the age of 18 years. 

Constitutional courts (Supreme Court and the High Courts) in India exercise a jurisdiction known as the parens patriae jurisdiction in child custody cases. The exercise of the parens patriae jurisdiction, which literally means “parent of the nation”, allows courts to treat cases involving children and minors with only one consideration in mind, which is the welfare of the child. 

What are Indian laws that govern the grant of custody of children?

In the case of the dissolution of a marriage, courts often deal with custody issues as per the different personal laws. The Hindu Marriage Act of 1956, the Hindu Minority and Guardianship Act of 1956, the Special Marriage Act of 1956, and the Indian Divorce Act of 1869 provide for how the court can grant custody if the parents decide to separate/seek divorce from each other.

The secular law which governs custody issues is the Guardianship and Wards Act of 1890. It empowers courts to grant guardianship and custody rights to individuals other than the parents of the child. In the absence of a parent, any person who desires custody of the child or claims to be the guardian of the child or any relative or friend of the minor can apply for custody in the District Court. 

What are the different ways in which Indian courts can grant custody in India in cases of separation/divorce?

In separation/divorce cases, the Court can grant any of the following types of custody: 

• Joint custody is where both parents have equal custodial rights over the child. The child lives with both parents for equal amounts of time, even though the parents no longer live together. In joint custody cases, neither parent can remove the child from the jurisdiction in which the child primarily lives without the permission of the other parent. 
• Sole custody is where the court grants custody of the child to only one parent and decides whether the other parent will have access rights to the child or not. As a matter of practice, the court grants custody of the child (of any sex) below the age of 5 years to the mother with visiting rights to the father, as the mother is considered the primary caregiver of such a young child. However, the court may award sole custody of the child to the father with only visitation rights to the mother if they consider the mother abusive or unfit to take care of the child. 
• For where children are aged 9 years or above, the Court can even consult the child to ask which parent the child wishes to live with. 
• Third-party custody is where the court considers neither parent to be fit to take care of a child and grants custody to a third party, such as either set of grandparents, step-parents, or any other relatives of the child. In cases of a marriage between a minor girl and an adult man, the court may even grant custody of the minor girl to her husband, if the girl is afraid to live with her parents. You can read more about what the law says about child marriage in our explainer, here.