Is Your Marriage Heading Towards Divorce? Child Custody Rights That You Should Know!


The family courts use “Child Custody” as a term for defining legal guardianship of the child that is below 18 years of age. Child custody often becomes a real matter for court to decide during marriage annulment or divorce proceedings.

In most of the cases, both of the parents can usually share the legal child custody, but just one parent can get physical custody of the child. Most of the family law courts decide about it on the basis of best interests of chid or children, and not on the basis of best arguments of the parent.

Generally, courts grants physical child custody to the parent who is most financially secure, have proper parenting skills, and who isn’t a disruption for the child’s proper growth. Both the parents can continue sharing legal custody of child, until the minor reaches 18 years.

Here, the term “legal custody” means that either of the parents can make the decisions that impacts welfare of child like religious practices, medical treatments, insurance claims, and so forth.

In case you are filing for a divorce, then you require understanding how the child custody actually works. The most critical aspect that pops up after divorce is the child custody. In majority of the cases related to divorce, child custody is generally settled between the parents themselves.

However, sometimes the parents might not be able to settle this issue by themselves. As a result, they require being aware of the laws in India that relevant to child custody. So now, let us dig a bit deeper about it in the following sections, so that you too can get a clear idea about it.


Important basics of the child custody laws 

As mentioned earlier, physical custody usually means that one of the parents is responsible to cater the child’s daily or basic needs such as education, food, housing, etc. However, in most of the cases, even the non-custodial parents can visit the child as per the order given by the court.

While there are some kinds of specifications under each of the personal law, the matter of child custody in India are actually governed by GAWA (Guardians and Wards Act), 1980. This act is applicable to all residents of India, regardless of their caste or religion.

Under this act, the custody of a small child is normally given to mother. However, custody of relatively older boys or girls may be given to father. It is to be noted here that the court even considers the specific personal laws when giving their judgements. After dissolution of the marriage, child custody can be likely given as follows.


  • Joint custody – This is relatively new concept, which evolved when the divorce settlements were negotiated. While both of the parents can have legal custody, one will generally have physical custody. It means that the child will reside with her or him, whoever is the primary caretaker.
  • Sole custody – If one parent that has been proven as unfit or abusive parent, then the other one is granted custody.
  • Third party custody – As the name suggests, neither of the biological parents are provided with custody of child. It is rather granted to some third person by court.


How the courts determine child custody?

There are different factors that are considered by court, while giving the decisions on the matter of child custody. Some of the major ones are financial circumstances of parents, character of parent, any particular “will” of deceased parent, environment at home, sex and age of child, etc.

However, preferences of child are usually considered after they turn nine years of age. Some of the archaic considerations still prevail. It means that if the woman gets remarried, then the custody isn’t granted to her generally, and may be given to father that remarries.

Most of the religions that are practiced in India have their own personal laws. They might even have their own notion of custody. They are explained in the following section.


Custody under Muslim Law


As per the Muslim law related to child custody, the very first right to get custody of children is of mother. She can’t be deprived of her rights, unless she has been found guilty of any misconduct. This kind of right is termed as “Hizanat”. It can be even be enforced against father or anyone else. This right was solely considered in interest of children. It however is never an absolute right though.

When it comes to the custody of son, it is a rule among Hanafis that mother’s hizanat right over son terminates, when her son reaches to 7 years of age. The Shia, however, believes that mother is entitled to this right till the son is weaned. On the other hand, among Malikis, this right of hizanat of mother continues till her son attains his puberty age. The rule among Hanabalis and Shafiis are same.

When it comes to daughter’s custody in hanafis, the mother is granted custody of her till she reaches the age of puberty. Among Shafiis, Malilikis, and Hanabalis, this right continues until the daughter gets married.

In absence of both of the parents, or in cases where both of them aren’t qualified, then grandfather is granted custody of the child. However, among malikis, the following females are granted with the custody, in absence of the mother.

  • Paternal aunt
  • Uterine sister
  • Maternal grandmother
  • Maternal aunt
  • Maternal great grandmother
  • Consanguine sister
  • Full sister
  • Paternal aunt
  • Father’s hizanat right


Almost all schools of Muslim law recognize the father’s right of the hizanat under two below mentioned conditions:

  • In absence of the mother, or any other female that has right to hizanat especially of minor children.
  • On completion of age of the child, for which mother or any other female were granted custody.
  • Father has sufficient power of appointing a reliable guardian and trusting him with custody of his child or children.

The other male relations that are entitled to the right of hizanat are as follows.

  • Nearest paternal grandfather
  • Consanguine brother
  • Full brother
  • Father’s full brother
  • Consanguine brother of father


A hazina must be of good moral character, of sound mind, living at a place where there isn’t any physical or moral risk to child. Moreover, she must be of the age that would qualify her of taking proper care of the child.

The hizanat right can’t be lost considering her poverty or need of funds for maintaining the child. Moreover, neither the mother nor father has right for removing chid from their matrimonial home. However, a Hazin can be deprived of custody child, if he is a minor, or if he has an unsound mind.


Child custody under the Hindu Law

As per the 1956 Minority and Guardianship Act for Hindus, the mother should get the custody of the child if it is over the age of 5. However, there isn’t such kind of statutory provision under the other personal laws. It should be noted here that if the mother refuses to have infant child since she doesn’t want to compromise the kind of life she leads, can also be deprived of the custody.


Some useful information

The thinking has been shifted from the custody being “right of parent” to becoming “right of child”. The principle on the basis of which custody is determined is “best interests of child”. So, the parent that can take relatively better care of child’s educational, social, as well as medical needs, is likely to be favoured.

While the overall earning capacity of parents may not decide the custody, the capacity of offering secure and safe environment is considered to be important. Even the mother that is housewife can easily gain the custody of child, and then the father can be asked to offer child support.

The mother is generally a preferred custodial parent, especially when child is below five years of age. The opinion of the child that is over 9 years of age is likely to be considered.

Non-custodial parent may get various kinds of access to child on the basis of convenience and circumstances. For instance, the court may grant fortnightly, monthly, daily, or even weekly visitation rights. It can even be overnight or day access. It can even be free access without any fixed schedule according to the parents’ as well as the child’s convenience.

The parents can even agree to a one-time or an ongoing payment plan at various stages of child’s educational life. They could even decide on monthly payments, along with incremental increase. The support for child must cover child’s nominal and educational expenses.


Different factors that are considered when granting custody by courts 

  • The capacity and character of proposed guardian. The courts normally rejects any allegations against mothers that are baseless.
  • Sex, religion, and age of minor. Courts consider personal law of father. However, the custody of younger children is normally granted to mother, in order to ensure their proper welfare.
  • Any previous or existing relations of proposed guardian with the property of minor. Courts aren’t kind enough on the guardians that just seek custody to have their control over minor’s property. However, if the property of minor is being shared with mother and if she is suitable guardian, then the court will likely regard property relationship as just additional factor in the mother’s favour.
  • The wishes of deceased parent. It may be specified in the will.
  • The preference of minor, if he or she is old to form a rational or intelligent preference. It is normally accepted at or after 9 years of age.
  • The comfort, material, health, spiritual and moral welfare. This is a broad category including undisturbed and adequate education of child.
  • Whether either or both of the parents have been remarried, and in case there are any step children. While mother’s remarriage normally denies him custody, the courts may agree to grant custody when the step mother of child doesn’t have her biological children.
  • Whether siblings will be divided or not. The courts likely prefer keeping children united and award the custody of either both the parents, or to only father or mother.


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