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Overview of Child Custody

Child custody is a crucial aspect of family law, particularly during or after divorce proceedings or in cases of judicial separation. It involves determining which parent or guardian should be granted legal rights and responsibilities over a child. The primary consideration in child custody cases is always the welfare and best interests of the child involved. In situations where it is not in the child's best interest to be in the custody of either or both parents, the court may even award custody to a third party.

Child Custody as per Hindu Law:

Under Hindu law, the custody of a Hindu child is regulated by the Guardian and Wards Act, 1890, in conjunction with the Hindu Minority and Guardianship Act, 1956. This law also applies to Jains, Buddhists, and Sikhs, as they fall under the Hindu definition.

Child Custody in India after an Argumentative Divorce

During a contested divorce proceeding, the issue of child custody becomes a matter for the court to decide. The court takes into account various factors to determine the custodial rights, always with the child's well-being as the top priority. These factors include:

Personal Law

The personal laws applicable to the minor play a significant role in determining custody rights.

Age, Sex, and Religion

The court considers the age, sex, and religion of the minor while making custody decisions.

Character and Capacity

The character and capacity of the proposed guardian, as well as their relationship to the child, are essential factors.

Wishes of a Deceased Parent

The court may consider any wishes expressed by a deceased parent and any previous relations between the proposed guardian and the minor or their property.

Child's Preference

If the child is old enough to express a preference, the court may take their choice into account.

Voluntary Acceptance

The court will not appoint or declare any person as a guardian against their will.

Keeping Siblings Together

Courts generally prefer to keep siblings together, so if custody involves multiple siblings, they may be awarded custody together.

Child's Welfare

Ultimately, the court's decision revolves around the child's comfort, health, material, intellectual, moral, and spiritual welfare.

The Process of Filing for Child Custody

Filing for child custody involves several steps:

  • Drafting the Application: An application for child custody must be drafted, typically with the assistance of a child custody lawyer. This application should outline the reasons why custody should be awarded to the applicant.
  • Filing the Application: The application should be filed in the District Court with the appropriate jurisdiction.
  • Hearing:After filing, a court hearing is scheduled. Both sides have the chance to present their arguments and supporting evidence at the hearing.
  • Court Decision: Following the hearing, the court will make a final decision regarding child custody based on the presented information.


The Hindu Minority and Guardianship Act, 1956 states that:

  • Children below the age of 5 years are typically placed in the custody of the mother, as she is considered best suited to provide emotional, moral, and physical support during this early stage.
  • For boys or unmarried girls aged between 5 and 18 years, custody is generally given to the father, as he is considered the natural guardian. If the father is deceased, custody may pass to the mother.
  • In the case of illegitimate children, custody typically remains with the mother.
  • If neither parent nor any close relative is willing to take custody, the court may appoint a suitable person as the guardian, often preferring grandparents if they are willing.

Choose LegalRaahi for a Fresh Financial Start

It's essential to understand that child custody cases can be complex and emotionally challenging. Seeking legal advice and representation, as well as understanding the legal process, is crucial for all parties involved. LegalRaahi can provide expert guidance and support throughout the child custody process, ensuring that the child's best interests are upheld while navigating the legal complexities.

Types of Child Custodys

In India, several types of child custody can be awarded by the courts:

  • Physical Custody of the Child: This type of custody involves the child primarily residing with one parent, while the other parent is typically granted visitation rights. The parent with physical custody is often considered the primary guardian.
  • Legal Custody of the Child: Legal custody grants parents the right to make important decisions regarding the child's education, religious upbringing, financial support, and medical care. This decision-making responsibility is generally shared by both parents.
  • Joint Custody of the Child: Joint custody entails both parents having equal physical and legal custody. While there are no specific legal provisions for joint custody in India, the judiciary has been increasingly inclined to consider it. Joint custody allows children to benefit from active involvement by both parents in their lives and reduces the concept of primary guardianship.

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