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.
Types of child custody arrangements in India
- Physical Custody
- Joint Custody
- Legal Custody
Legislations governing Child Custody under different laws in India:
- 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
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
 Judgment passed by the Hon’ble Apex Court of India through a bench comprising of HMJ AM Khanwilkar and HMJ Ajay Rastogi.