Divorce/Dowry

Child Custody Law in India: Know It In Detail

LegalKart Editor
LegalKart Editor 04 min read 581 Views
Last Updated: Nov 08, 2023
Child Custody Law in India: Father & Mother's Rights in India

Custody of children is a very sensitive matter. If the law does not govern child custody, it may create concerns not only for the parents, but also for the child. Hence, India has child custody laws that cater to the interests of the child. We have child custody laws in the form of personal laws and not a single uniform child custody law.

How to win child custody for mothers in India

Under Hindu Minority and Guardianship Act, 1956

A child under the age of five should be handed to the mother since it is thought that a child of this age requires attention and love, which can only be provided by the mother.

You may also read Property Rights Of A Wife After Her Husband’s Death – Is She The Legal Heir Of Husband’s Property In India?

The ultimate requirement for giving child custody is that it must be in the "best interests of the child." All of the above regulations can be waived if there is a strong indication that they would have a negative impact on the "best interests of the child."

Mother should keep in mind what are the conditions under which a person cannot be given child custody-

Certain people cannot be granted child custody:

  1. a person with bad habits adversely impacting the child's proper upbringing;
  2.  a person who is no longer a Hindu or has chosen to convert to another religion;
  3. A person who has renounced the material pleasures of the world;
  4. a person who may not be able to encourage the development of the child in his best interest. Even mothers may be denied custody on this ground.

Under the Muslim law

Mother has the custody of a child until son is 2 years old and daughter is 7 years old. (Shia Law)

Custody of child is with mother until the son is 7 years old and for the girl until she attains puberty.

The custody right of the mother will remain even after she is divorced, but the right will be lost after remarriage

Consent of child is taken into consideration provided that there is no tutoring in the case tutoring is there consent is disregarded.

Although the father is considered the natural guardian after son attains age and daughter attains puberty but these rules can be subject to exceptions where persons can be denied the custody irrespective of the gender.

Under Christian Law

Here the court has to exercise its power to ensure the best interests of the child and adverse things would be considered before arriving at a decision.

Father's Custody Rights in India / Custodial rights of fathers in India

Hindu law

It is a customary practice in Hindu law that father is an actual guardian and has ultimate right of custody, in the section 6 of the Hindu Minority and Guardianship Act, 1956 custody of a child aged between 5 to 18 years is the right of father.

The Supreme Court ruled in Geeta Hariharan v Reserve Bank of India that the mother can seek custody only if the father has died or is not present. However, If the child is illegitimate this rule does not apply, Only the mother has the right to custody in this situation.

But the courts have inclined more towards the best interest of the child doctrine, all rules can be disregarded if they are not in the child’s best interests.

You may read Divorce Law in India

Muslim law

The custody of boys above age 7 and girls after puberty is given to the the father who is considered to be the natural guardian similar to hindu law.

Although doctrine of best interests is applicable here also.

Child Custody Age Limit

In Hindu law the, child Custody Age limit is 5, i.e. until that age child is naturally given to the mother subject to the best interest doctrine while after that custody is decided by court properly

In Muslim law:

There is a difference between shia and Hanafi law

In shia law the mother has the custody of the boy until he is 2 years old and the girl until she is 7 years old.

In Hanafi law the mother has custody of the boy until he is 7 years old and the girl until she attains puberty.

After that the custody is the right of the father (subject to exceptions abovementioned)

Custody of child above 7 years old in India

In Muslim law

There is a difference between Shia and Hanafi law

In shia law the mother has the custody of the boy until he is 2 years old and the girl until she is 7 years old.

In Hanafi law the mother has custody of the boy until he is 7 years old and the girl until she attains puberty.

After that the custody is the right of the father (subject to exceptions abovementioned)

Child custody laws in India without divorce

Custody of a child under the age of 18 simply indicates which parent the child will live with physically. When one parent wins custody under the specific laws above mentioned, it does not imply that the other parent loses his or her parental rights to the children. The child custody legislation expressly specifies that they remain the natural guardians of the child irrespective of their marriage being annulled. In other words, the child's primary caregiver is the custodial parent, although the non-custodial parent retains the right to meet the child.

You may read Annulment of Marriage.

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