Monday, 24 January 2022

Laws of Child Custody In India



Child custody after separation of the parents is a major issue. Issue of child’s custody comes after the completing the divorce process and it is the most important issue on which the court should give a decision. Custody of a child refers to the right given to a parent by the court to take care of the child if the child is less than 18 years of age. The parent with whom the custodial right is vested, that parent is supposed to look after financial security, maintenance of the child with respect to providing good lifestyle, healthcare, emotional, physical and medical development. The other parent is given with the right to access and meet the child. The family courts while arguing on the issue of custody, give their decision on the best interest of the child in question.


When the family courts are handing over the custodial rights to of the parents, the decision depends on the surety of the best possible future of the child. The welfare is decided on 4 different parameters. They are discussed below:

  • Proper and ethical upbringing

  • Assurance of safety of the child

  • Impacting quality education

  • The guardian with whom the custodial rights is vested must be financially stable.


In the case of a minor child, both parents have equal rights over on the child after getting separated. Equal rights here mean to the right to custody of the child. The main piece of legislation that has provisions to address the issue is the Guardian and Ward Act, 1890. This is primarily secular in nature. The provisions of this act are often opposite to the provisions that deal with personal laws. The decision of the family court is important in this case because while pronouncing its verdict, the court focuses upon creating a balance between the two. The custody of the child is given to any one parent at a time on the factors mentioned above. The other parent is given the right to be in touch. The right to access is a potent right in the hand of the other parent because it assures that the parent with the custodial right is really taking good care of the child. The provision of the right to access  assures that the child gets the love and affection of both the parents.


There are 4 forms of custodial rights in India. They are as follows:

Physical custody of the child: When a parent is given the decree of physical custody, it means that the child will be under the guardianship of that parent and the other parent shall will be given permission so that they can meet the child time to time.

This type of custody is the most prevalent method to assure that the child gets all the benefits of the family and has the best upbringing possible. The environment around the child is such that child should not feel deprived in any manner because of the separation of parents.

Awarding to joint custody: In case of joint custody, the rights of custody are vested with both the parents which lets them to keep the child turn by turn. Joint custody is contrary to the common belief, this does not mean that the divorced couple share the same roof even after courts announced their divorce. This concept of joint custody was one of the best solutions in the custody battle primarily because of two reasons. 

The first reason being that no parent feels deprived. No matter the term, custody rights cannot be compared with access rights. That’s the reason granting of joint custody guarantees both the parents play a significant part in the growth of child’s life. 

The second reason is that the child gets to experience the affection of both parents equally. Separation of a child’s parents is a biggest scar in a child’s life. This arrangements lets the child get the attention of both parents equally.

Third Party Custody: As the name suggests, the custodial right is not given to neither of the biological parents. This is because the court deems that both parents are not capable of raising a child and to give any parent the right of custody of the child will not be benefit the child. A third party is some way related to the parents is given the right to be guardian of the child.

Sole Custody: In case of sole custody, the whole right of custody of child is with one biological parent. The other parent is kept away completely. The other parent is not given any right over the child. This is because of the previous history or past happenings of abusive behaviour or if they are incapable of being beneficial to the child in any possible way.


Until the court gives the final order based on the above discussed conditions, the parent who is vested with the custody their kid gets the physical custody as well as the legal custody of the child. Any other type of custody or any other arrangement will be made clear by the court and the clarification shall be conveyed to both the parents.


The custody of a child stays with one of most sensitive and complex issues that arouse as a result of separation proceedings of parents. The custody, as seen, is guided mainly by middle ground that is set up by the judges in this aspect. There has been a controversy between the different religious laws and uniform legislation enacted by the state. But the controversy regarding various angles of laws should not affect the future of the child in any manner. It should be kept in mind that welfare of the child along with guaranteed social security is the prime motive behind the custody of a child. 

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