child custody


The issue of Child Custody comes up during divorce proceedings or judicial separation; it becomes an important issue to be decided by the courts. It refers to the process of controlling, caring, and maintenance of the child less than 18 years of age by the custodial parent (the rights being granted by the court) under set parameters such as financial security, understanding with the child, lifestyle, etc.

The prime right of nurturing the child concerning education development medical emotional physical etc. lies with the custodial parent while the non-custodial parent holds the right to access and meet the child. In many cases, both the parents are provided with access to the child, but the physical custody of the child is usually granted to one parent. The Family Courts while deciding on this need to keep the best interests of the child as of greatest importance.


Physical custody

Physical care is the privilege to have your kids live with you after a separation. The privilege might be shared by the two guardians in a joint physical care game plan or conceded to just a single parent in a sole physical care game plan.

Joint Physical custody

Joint physical guardianship empowers the two guardians to be fundamental parts of their youngsters’ lives. Research underpins that in low-clash divorces, kids passage is preferred in joint guardianship courses of action over sole authority. In any case, for high-clash divorces with debating guardians, the joint physical authority may trap youngsters amidst a passionate clash zone.

Sole custody

Sole custody denotes who gets the chief or exclusive responsibility in the upbringing of the child, on the separation between the parents. In these cases, a singular parent makes all the major decisions revolving around the life of the child.

Third party custody

Third-party custody is a unique arrangement where an individual who is not the parent of the child is awarded custody of the child at the discretion of the Court. A non-parent may include relatives, or paternal/ maternal uncles, grandparents etc.

Split Custody

 Split custody is a rare situation and is not welcomed most of the time. In his arrangement where there are many siblings in the household, the responsibilities of some of the children are taken care of by one parent and the responsibility of the rest of the siblings are borne by another parent. This is not a preferred arrangement because most of the time the custody of all siblings is awarded to a singular parent and the siblings are usually not separated.


A divorce or separation between parents is always challenging for the child involved and hence innumerable laws are safeguarding the rights of the child from such relationships.

Under Hindu Personal Law

  • For Hindus, the law governing custody of a child is the Hindu Marriage Act. For Hindus, the parent law governing custody of child is the Hindu Marriage Act, 1955. In addition to this Hindu Minority and Guardianship Act, 1956 also takes care of this issue. Judiciary has manifested its activism basically in three ways in the matters related to custody of the child born out of wedlock among Hindus and they are[2]
  • Imposition: The right of custody from time to time. While choosing the factor with respect to who will have the care of the child, child’s desire is frequently dealt with wherever conceivable. Court now and again intervenes with the custodial privileges of the youngsters. The Court investigates the issue with most extreme care. Answer for the inquiry in the matter of who will have the care of the youngster after separation or legal division depends on the factor in the matter of what will be most helpful for the child and the court comes to the conclusion that,
  • Alteration: The right of custody from time to time. If care with the father is more appreciable and encouraging then the father will have the care. If under mother’s authority child’s future is more secure then care will go to the mother or any other relatives with whom the interest of the child seems to be more secure. Here court is vigilant about the interests of the child and court alters its pronouncement in due course of time.
  • Revocation: This scenario arises after the court has passed the order of child custody. On certain circumstances, if the finding of the court subsequent to going off the request of child guardianship, court may revoke the care and allow it to the inverse party. For instance, when a mother was given care of her child and she didn’t play out her obligations towards the child legitimately and in an efficient manner, the court denied the authority and offered it to child’s father.”

Custody Law under Muslim Law

In Islamic law, the father is the natural guardian, but custody vests with the mother until the son reaches the age of seven and the daughter reaches puberty. The concept of Hizanat provides that, of all persons, the mother is the most suited to have the custody of her children up to a certain age, both during the marriage and after its dissolution.

A mother cannot be deprived of this right unless she is disqualified because of apostasy or misconduct and her custody is found to be unfavourable to the welfare of the child.

Custody Law under Special Marriage Act, 1954

Section 38 of the Special Marriage Act, 1954 also sheds light on the custody of children where the Court may from time to time pass any such interim orders and make provisions concerning custody, maintenance and education of minor children.

Custody Law under Parsi Law

Section 49 of the Paris Marriage and Divorce Act, 1936 grants Court to pass such orders that it seems proper and just in respect to custody.

Custody Law under Christian Law

Section 41 of the Indian Divorce Act, 1869 grants powers to the Court to make orders as to the custody of the children in the suit for separation as it deems just and proper.


The role of the judiciary in custody issues are of great importance. The Court exercises powers to grant rights of colossal value that have a vast impact on the life of children as well as families. The justice delivered by the Court shapes the future of the child and his/her family.

It lays down the foundation of his/her mental health and well-being. The Court plays the crucial role of the protector of rights and administrator of justice thus selecting a guardian which serves the best interests of the child involved. Therefore, the Court holds the significant position of the “Custodian of the Constitution”.


The consideration of paramount importance in a proceeding for the custody of a minor is the welfare of the child. No legal right, preferential right or any other right holds more importance than the well-being of the child. Any court of law grants custody to that party who can assure the court that the welfare of the child best lies with them.

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