Who gets the child’s custody after divorce?


Child custody after divorce is one of the most crucial and sensitive areas of the legal system, not just in India but across the world. Child custody is the aspect of the law that was specially crafted to deal with a situation when a married couple with one or more children decides to end their marriage legally. In such a case, the accommodation and expenditure of the child are put into question.

In this article, we will discuss who gets child custody after divorce in India and how the court decides on matters related to child custody.

How does the court decide who gets child custody after a divorce?

Although the court makes a sound decision based on the financial and mental conditions of the parents, the preference of the child is always given heavy consideration. This is called the ‘best interest’ doctrine for child custody.

Even though custody is granted based on a parent's potential and the child's preference, both parents have equal rights to the child under the Indian legal system. A particular parent winning custody does not make the other parent any less eligible or efficient as a parent.

If there is mutual consent between parents, they can decide who gets custody; if not, they can seek intervention from the court. As per the Guardians and Wards Act 1890, the family court decides on child custody, considering the following factors:

  1. The welfare and best interests of the child: The primary consideration in any child custody case is the welfare and best interests of the child. This includes physical, emotional, and mental well-being, as well as the child's religious and cultural background.
  2. The ability of each parent to care for the child: Courts will consider the ability of each parent to care for the child, including factors such as their financial stability, mental and physical health, and ability to provide a stable home environment.
  3. The wishes of the child (if old enough to express a preference): If the child is old enough to express a preference, their wishes will be taken into account. In India, a child over the age of 14 is generally considered old enough to express a preference.
  4. The history of caregiving: Courts will also consider who has been the primary caregiver for the child up until this point. If one parent has been the primary caregiver, they may be more likely to be awarded custody.
  5. The relationship of the child with each parent: The courts will also consider the relationship of the child with each parent, including the quality of the relationship, the level of involvement of each parent in the child's life, and any potential negative impacts on the child if the relationship with one parent is severed.
  6. Any history of abuse or neglect: If there is a history of abuse or neglect by one parent, this will be taken into consideration and could result in that parent being denied custody.

Laws governing child custody vary based on different religions

In India, child custody laws are governed by the Guardians and Wards Act of 1890. The act applies to all religions and provides for the appointment of a guardian for a child in certain circumstances, such as when the child's parents are deceased or have been declared unfit to be guardians. Under the act, the court must consider the welfare of the child as the paramount consideration when determining custody.

Additionally, certain religions in India have laws that govern certain aspects of family law, including child custody.


Hindu Minority and Guardianship Act of 1956 provides that the father is considered the natural guardian of a Hindu child, while the mother has the right to be the guardian in the absence of the father.


Muslim personal law of India which is based on Islamic Shariah Law, provides that the father is the natural guardian of a Muslim child, however, the mother has the right to custody of a child under the age of seven.


Indian Divorce Act of 1869 provides that the custody of children is to be given to the mother if the children are under the age of 7, and to the father if the children are older.

It's worth noting that all these personal laws are however subject to the Guardians and Wards Act which gives the court the discretion to award custody in the best interest of the child.

Different types of child custody in India

Here are all the types of child custody that are based on diverse conditions:

  • Physical Custody: One parent receives guardianship, while the other can still contact and visit the child. 
  • Joint Custody: Both parents have equal decision-making rights for their children.
  • Legal Custody: Parents do not necessarily take care of the child, but decide his life.
  • Third-Party Custody: When the parents are unfit to take care of the child, the third party gets guardianship.
  • Sole Custody: Only one biological parent has physical and legal rights to the child.

Approaches to Resolving Child Custody Disputes in Divorce

In India, mediation and alternative dispute resolution (ADR) methods are becoming increasingly popular in child custody disputes. These methods are often seen as less adversarial and less costly than traditional litigation and can help resolve disputes quickly and efficiently.


Mediation is a process in which a neutral third party (the mediator) facilitates communication and negotiation between the parties to help them reach a mutually acceptable agreement. 

Mediation can be useful at any stage of a child custody dispute, especially for resolving disputes related to parenting plans and other issues that may arise after a divorce or separation.

Mediation is considered a strong alternative for the resolution of child custody disputes, which is why Indian courts recommend mediation as a first step for resolving disputes under the Guardian and Wards Act 1890 and the Family Courts Act.

Alternative Dispute Resolution:

The Indian judicial system has different mechanisms for ADR, such as Lok Adalats and Mediation centers, used to resolve disputes between parties. It's beneficial for parents to find amicable solutions without undergoing the stressful and often prolonged court process.

It's always best to consult a lawyer with knowledge of the local laws and the court processes when navigating child custody disputes. They can guide the best course of action and help protect the rights and best interests of the child.

Mother’s Rights in Child Custody

According to studies, in an average of 90 custody cases that are tried, only 2 of the cases turn out in favor of the father.

This is predominantly because the majority of children, especially ones under the age of 13, prefer to live with their mothers because they naturally tend to be the primary caregivers in most societies.  

Oftentimes, the 'preference of a child' and 'rights of the parent' are contradictory. This is why custody battles involving children under the age of 13 are slightly more complex. They often do not have any contextual understanding of the problem at hand.

The decisions they make are solely led by emotions as they are incapable of anticipating what is best for them.

Upon asking a child that young about their custodial preference, they are either incapable of answering or they side with the parent that they think they love the most.

But, apart from the child’s preference, the court also runs a rational analysis about who would make a more fitting parent.

The background of each parent is thoroughly studied. If a particular parent, despite being preferred by the child, is declared alcoholic, abusive, financially unstable, or mentally unfit, custody will automatically go to the other parent.

Father’s Rights in Child Custody

When a mother is declared the rightful primary guarding, does it unburden the father of his responsibilities?


As mentioned earlier, one parent is declared as the primary giver. However, neither does that rip the parent off of their rights to the child, nor does it relieve them of taking responsibility for the child.

In the case of financial responsibility, there are no preset ratios of contribution expected from each parent. However, the financial responsibility of the child is split among the parents.

The financial stability and capability of each parent are carefully analyzed before making a decision.

Especially in the cases coming in India, a generous percentage of women applying for divorce are financially dependent homemakers.

This naturally puts the father in the position of primary financial provider.

However, if the mother is also finally stable, the expenses are split between the two.


The child's custody will forever be a complex situation because, unlike adults, children do not have deliberate control over their life. However, they are emotionally vulnerable and in their formative years, they need nurture, safety, and constructive quality of life. This is why custody battles are always complicated, and there are special acts in place to assist in situations like these. If you are facing a custody battle, it is important to consult with child custody lawyers who specialize in family law. They have expertise in navigating the legal processes and advocating for the best interests of the child.

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FAQs Related to Child Custody After Divorce

Can parents come to an agreement on child custody outside of court?

Yes, parents can come to an agreement on child custody outside of court through mediation or other alternative dispute resolution methods. These methods can help parents to reach a mutually agreed upon custody arrangement that is in the best interests of their child.

Can a child over the age of 14 choose which parent they want to live with?

In India, a child over the age of 14 is generally considered old enough to express a preference in child custody cases. However, their preference is not the deciding factor and the court will still consider the other factors that are in the best interest of the child.

Is joint custody the norm in India?

Joint custody is becoming more common in India but it is not the norm yet. It is up to the discretion of the court to decide what custody arrangement is in the best interest of the child.

What happens if one parent does not agree to the custody arrangement?

If one parent does not agree to the custody arrangement, the court may order a hearing to determine the custody arrangement. If a parent is not able to comply with the court's custody order, they may face legal penalties.

Can a custodial parent relocate with the child?

The custodial parent has the right to relocate with the child, but they may need court permission or the non-custodial parent's consent in certain cases. The courts will consider the best interests of the child before making a decision.

Can a parent's custody rights be terminated?

A parent's custody rights can be terminated if it is deemed in the best interests of the child. This typically happens in cases of abuse or neglect, or if the parent is deemed to be unfit.

Can a non-custodial parent still have a relationship with the child?

Yes, the non-custodial parent has the right to maintain a relationship with their child. The court may order visitation or access rights to ensure that the non-custodial parent can continue to have a relationship with the child.

Is a man expected to pay child support if the wife has sole custody after divorce in India?

Yes, a divorced man is generally expected to pay child support to his ex-wife if she has been awarded sole custody of their children. The court determines the payable amount based on the child's requirements and the financial resources of the father. The payment of child support is considered a legal obligation of the father and failure to pay it can result in legal action being taken against him.

What is to be done when neither parent of the child is ready to take up child custody in India after a divorce?

The court may grant custody to a third party, such as a grandparent or other relative, or place the child in the care of a foster family or a children's home. The court's primary consideration in determining custody is the best interests of the child, which may include factors such as the child's age, health, and emotional and educational needs.

Author Bio: Adv. Taranjit Singh is a distinguished advocate specializing in commercial and civil law. With over 15 years of experience, Adv. Taranjit brings a wealth of expertise in governance, advanced contracting, procurement, cyber security, and technology law.

For the past few years, Adv. Taranjit has served as an Independent Counsel at the Bombay High Court, where his legal expertise and unwavering dedication to his clients have earned him widespread respect and admiration in the legal community.

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