Child Custody in India

Child custody decides where a child lives and who takes day-to-day decisions, and how the other parent keeps in touch. This page is a general overview. It is not advice on any particular case.

The guiding principle

In India the welfare of the child is the first consideration. Under the Guardians and Wards Act, 1890, a court appointing or declaring a guardian must be guided by what is consistent with the welfare of the minor. If the child is old enough to form an intelligent preference, the court may consider it.

Laws that apply

The Hindu Minority and Guardianship Act, 1956 names the natural guardians of a Hindu minor. It also says that the custody of a child who is under five years of age should ordinarily be with the mother.
The Guardians and Wards Act, 1890 applies to all communities and lets a court appoint a guardian or decide custody.
The Hindu Marriage Act, 1955 lets the court that hears a divorce or separation case pass orders about the custody, maintenance and education of minor children (section 26).
Personal laws govern guardianship for Muslims, Christians and Parsis, and the welfare of the child still guides the court.

Kinds of arrangements

Sole custody: the child lives mainly with one parent, and the other has visitation.
Joint custody: both parents share responsibility, and the arrangement is worked out in practice.
Visitation and access: fixed times for the other parent to meet the child, in person or by video.

Where a case is heard

Proceedings about the guardianship or custody of a minor, or access to one, fall within the jurisdiction of the Family Court under the Family Courts Act, 1984. Courts can pass interim orders while the case is pending, and often refer parents to counselling or mediation first.

Custody and money

Custody does not remove a parent’s duty to maintain the child. The court can order maintenance for children separately from maintenance for a spouse.

See guardianship matters in family law, contested divorce and mutual consent divorce.

Frequently asked questions

Who gets custody of a young child?

The welfare of the child is the main test. For Hindus, the Hindu Minority and Guardianship Act, 1956 says that the custody of a child under five years of age should ordinarily be with the mother.

Can a father get custody?

Yes. A court decides custody on the welfare of the child and the facts of the case. Apart from the rule for children under five, the law does not automatically favour one parent.

Can a child choose which parent to live with?

Under the Guardians and Wards Act, 1890, a court may consider the preference of a child who is old enough to form an intelligent preference. The court is not bound by it.

Does the parent without custody have any rights?

The court can grant visitation or access, and the duty to maintain the child continues.

Which court decides custody?

The Family Court deals with proceedings about the guardianship or custody of a minor, or access to one.