Custody of Children after Divorce

Submitted by asandil on 1/1/2021

As we can see in our society that cases of divorce are not uncommon in India. The effect is on the children who suffers the most. The term child custody used in the family law in which court decides the legal guardianship of child under the age of minority.

Types of Custody

  • Physical Custody
  • Legal Custody
  • Joint Custody
  • Third Party Custody

Physical Custody:

Physical custody awards the custody of a child to a single parent when another parent is not fit for parenting and abusive. The parent to whom the custody is granted will be designated as primary caretaker and will be responsible for the child’s educational, emotional, and other needs. Visitation rights are granted to another parent who can get exclusive right with the child every other weekend, alternating major holidays, and the number of days during summer vacations.

Legal custody gives the right to parent to take essential decisions related to child. The rights include the right to cater to the child’s educational, financial, moral, and medical requirements. In most of the cases the legal custody is granted to parents together but when the parents do not agree and there is lot of arguments in such cases the court grants legal custody to any one parent.

Joint Custody:

It simply means that both the parents will take turns keeping in child in their custody. The rotation of a child between the parents’ custody may differ from certain days or a week or even to a month. This not only benefits the child as the love of both the parents is not lost and the parents also get to witness their child early years.

The Guardians and Wards Act,1890

As per the Guardians and Wards Act, 1980, a minor child is a person who is under the age of 18 physically and intellectually imperfect and immature so the child needs someone to take care of him. Guardian means a person having the care of the person of a minor or of his property or both his person and property. The court passes judgement in the interest of the considering his age. Sex, religion, the character of guardian, death of parent, and the relation of child with the guardian. The minor’s preference is taken into consideration. The welfare of the child is taken as a paramount consideration. The judgement is taken by the court in the best interest of children.

Who Can Claim Custody of a Child?

The custody of a child can be primarily claimed by either the mother or the father. In case either of the two are deceased or not in the picture because of operation of any other law, the maternal and paternal grandparents, any other relative(s) of either of the parents strictly out of compassion towards the child can seek custody of the child. The Court can also appoint a third person to be the guardian of the child.

Child Custody under Hindu Law

The Hindu law is applicable only when both the parents are Hindus. The rules for gaining custodial rights under the Hindu laws are described in the below points.

  1. Section 26 – As per the Section 26 of the Hindu Marriage Act, 1955 the court may from time to time pass such interim orders and make such provision in the decree as it may deem just and proper with respect to custody, maintenance, and education of minor children. The court may dispose of the pending decree within 60 days from the date of service of the notice of the court.

  2. Section 38 – Section 38 of the Special Marriages Act validates the custody of the child in case both the parents belong to different religions or if undertaken a court marriage. Under this act the district court may, from time to time, pass such interim orders and make such provisions in the decree as it may seem to it to be just and proper with respect to the custody, maintenance and education of minor children. The court may dispose of the pending decree within 60 days from the date of service por notice.

  3. Hindu Minority and Guardianship Act,1956 – This act states that only biological Hindu parents have the rights to seek the custody of their minor child and step parents are not given the right to seek the custody of their minor child only if he/she is Hindu.

Child Custody under Muslim Law

According to the Muslim law, only the mother has sole custody of the children under the Right Hizanat unless she is proven guilty of misconduct. The father is given the Right of Hizanat only in the absence of an able mother.

Certain general principles adopted for custody of a Muslim child are mentioned below-

  1. Under the Shia law, a mother’s right to the custody of her minor children extends until a son is two years old, and the daughter attains the age of seven.
  2. Under Hanafi law, custody of a child is with the mother till he attains the age of 7 in case of a boy; and till she attains puberty in case of a girl.
  3. The mother’s right of custody continues even if she is divorced but in case of remarriage, the custody belongs to the father.
  4. The consent of the child is taken into consideration if he is held to be able to understand his interests. Further, such consent has to be cross-checked so as to identify there’s no element of tutoring present. In case there is, the consent of a child has to be disregarded.
  5. The custody of a boy above the age of 7 and a girl who has attained puberty is transferred to the father who likes in case of Hinduism is considered to be the natural guardian.
  6. The above rules are subject to certain exceptions wherein certain people are denied custody irrespective of their gender. These rules are:
    1. a person who possesses a bad moral character;
    2. a person who has ceased to be a Muslim and thereby converted to any other religion;
    3. a person who does not have a sound mind;
    4. the doctrine of ‘best interest of the child’ applies here also and a person who cannot take proper care of the child is not entitled to the custody;
    5. a woman who has married within prohibited relationships.

Child Custody under Christian Law

There is no provision for custody mentioned in the Christian law, however the Indian Divorce Act, contains provisions relating to the child custody. This act provides with the powers to make orders as to child custody under Christian law in suit for separation. In any suit for obtaining a judicial separation the Court may before making its decree, make such interim orders. The court may also make such provision in the decree, as it deems proper with respect to the maintenance, education of the child custody under Christian law.

The couples however, have an option of choosing to be protected under the Section 38 of Special Marriages Act, 1954 validates the child’s custody in the cases where the parents belong to different religions or have done the court marriage.

Child Custody under Parsi Law

The Parsi’s does not have any specific laws pertaining to child custody. Therefore, all such issues are addressed by the Guardians and Wards Act, 1890. Under the Parsi Marriage and Divorce Act, 1936, the wife can claim for maintenance to support their minor children. Under this Act, the court has to pass an order within 60 days related to custody of Parsi children and their guardianship.

Recent Court Judgements

  1. The supreme court has determined in the case Jay Prakash Khadriya vs Shyam Sundar Agarwalla on 12th May 2000, that the welfare of the child is of paramount importance and can be given to paternal grandparents.

  2. In case of Anirrudha Bose Yashita Sahu vs The State of Rajasthan the supreme court stated that parent who is denied custody shall have right to talk to the child every day.

  3. In Bilkis w/o Munne Khan vs. Munne Khan2, a Mohammedan wife who was living separately from her husband filed a petition for custody of her minor son aged about 2 1/2 years. It was found that she was residing at a distance from the husband’s home and neglecting the child even when their relations were cordial. On these facts the court held that it was not in the interest of the welfare of the child though the child was of tender years to give his custody to the wife. Custody of the child therefore was given to the father.


Although the court has taken into consideration the personal law of the parties at the time of custody of the child but the child’s welfare is of paramount importance and cannot be over-ruled by the personal law because the welfare of the child always is the decisive factor. For any decision taken well-being of the child must be best taken into consideration.