What are Indian Laws on the Custody of a Child?

In India, the child’s custody is granted by the family court after or during the separation proceedings of the spouses. Every case is unique in its own cause. The courts are more focused towards “right of the child” or “benefit of the child” than the right of the parent.

The parent who can provide the best possible environment mentally, socially and physically to the child is the one, whom the custody is given to.

Before moving to who gets the custody, and why let’s understand what are the different types of child custodies.

What are the types of child custodies?

  1. Legal custody: Legal custody is one of the most common types of custody, where both the parents share a joint legal custody of the child. But the parents both the parents have the right to make long-term decisions for the child for example the child’s education, dental health dental health care et cetera
  2. Physical custody: Physical custody is different from legal custody as in this type, the child the child’s whole responsibility falls upon the single parent chosen by the court. It means that that particular parent, has the sole right to take full decisions for the welfare of the child. And is not answerable to the other parent.
  3. Bird’s nest custody: this is the most rarest type of custody granted in India. In the Birds nest custody, the child is provided with the residence and the parents are the one who alternately reside with the child. Thus, it is the parents who are continuously moving in and out of the house and not the child.
  4. Split custody: When in a marriage, there are more than one children & one of the parent has custody of some children & the other parent has the custody of the other children.
  5. Alternating/ Divided custody: Alternative custody is the kind of custody, where a child remains with one parent for some time & then with the other parent for the rest of the time.
  6. Third-party custody: in the third party custody, the custody of the child is given neither to the mother or the father but to a third person, for example, a grandparent or a relative.

In India, due to the a lot of technicalities, custody & divorce battles can be stretched for years. Due to that purpose, either of the parent can file for interim or temporary custody of the child, if either of the parent believes that there is a threat to the welfare of the child.

What are the factors that are kept in mind while deciding the custody of the child?

The Supreme Court of India, through judgements in various cases have explained the factors which judges should keep in mind while deciding custody of the child. They are –

Welfare of the child: welfare of the child basically means the right environment required for the upbringing of the child.

Mental health: Another important aspect is to take care while giving the custody of the child that a correct balance has to be maintained between the attachment that the child has with the parents, individually. A child’s mental well-being must not be sacrificed at the cost of his physical well-being.

Consent: A child’s personal choice as to with whom he wishes to stay after the divorce of the parents also plays an important role. In case where the child is close with the father.

What are the Indian Laws on Child Custody?

India is a religiously and culturally a diverse nation. Most of the religions have their own laws set for them. In this blog, we shall be discussing the Hindu laws on child custody. The child custody is dealt through 3 laws they are- The Hindu Marriage Act, the Special Marriage Act and the Hindu Minority and Guardianship Act.

  1. Hindu Marriage Act- This act is applicable to the child, whose both parents follow the Hindu religion. The appropriate courts can pass judgements, orders, amendments to the laws related to the maintenance, education, caring and wellbeing of the child.
  2. Special Marriage Act- This act is applicable in cases where both the parents belong to different religions or have gone through a court marriage. The appropriate courts can pass judgements, orders, amendments to the laws related to the maintenance, education, caring and wellbeing of the child.
  3. Hindu Minority & Guardianship Act- This act is applicable only when both the parents are Hindu and doesn’t recognize third party rights. It only considers custodial rights between the biological parents.

How can the Law Office of G.S. Bagga & Associates help you in getting custody of your child?

Greetings! We at the law office of G.S. Bagga have been handling family and custodial matters for 7 years now. Custodial matters of a child can be tricky and differ from case to case, but we can assure you that our goal has always been centered towards client satisfaction. If you’ve found the above information satisfying, you can get in touch with us and can book a free consultation. We would love to help you in this custodial journey of you and your child. Feel free to contact us, anytime.