When a marriage terminates by way of divorce in India and there are issues born out of the wedlock (children born out of the marriage), it is the foremost duty of the parents to ensure the welfare of the child and also to ensure which parent would assume the custody of the child post the separation and in which proportion, the varied expenses pertaining to the child would be shared in between the spouses.

When the above arrangement is not amicably and mutually decided between the husband and wife, then it results in filing of legal proceedings for the custody of the child.

The priority in the child custody battles is the welfare of the child and it is upto the Court to see which of either of the parent can ensure the welfare of the child in better manner.

It is noteworthy that in a recent judgment passed on 20/02/2020 the Hon’ble Supreme Court has held that in a custody battle the child is always the loser, no matter which parent wins.[1]


Types of child custody arrangements in India

  1. Physical Custody
  2. Joint Custody
  3. Legal Custody

Legislations governing Child Custody under different laws in India:

  1.  Custody under Hindu  Law

The  laws associated under Hindu Law namely, Section 26 of Hindu Marriage Act 1955,  Section 38 of Special Marriage Act 1954 and Hindu Minority and Guardianship Act  1956 describe about the reforms and regulations set for seeking child custody.  

  • Section 38 of  Special Marriage Act 1954

The act validates the child’s custody if both the parents belong to different  religions or have undertaken a court marriage. Under this act, the court can  any point of time pass interim orders, judgments, amendments, etc. with respect  to the child’s maintenance and can dispose of the pending decree within 60 days  from the date of service of notice.

  • Muslim Law

Only the mother holds the ultimate right to seek her child/children’s custody under the Right of Hizanat until she is not convicted  or found guilty of any misconduct.

  •  Custody under  Christian Law

The  child’s custody for parents belonging to Christian religion need to follow the  reforms and laws set under Section 41 of the Divorce Act 1869. In addition to  this, Section 42 and 43 of the same act hold the right to decide upon the  child’s custody once the judgment with respect to separation or divorce has  been passed.

  • Secular Enactment

Irrespective of the fact a person belongs to any religion in India he /she may file a petition under Section 12 and 25 of the Guardianship and Wards Act, 1890 for custody of the child.

[1] Judgment passed  by the Hon’ble Apex Court of India through a bench comprising of  HMJ AM Khanwilkar and HMJ Ajay Rastogi.