Who Gets the Child Custody After Divorce

Who Gets the Child Custody After Divorce

Broken marriages may have an unpleasant impact on the Child’s future. The custody of a child is a legal issue that frequently arises in matrimonial disputes involving a child, such as divorces, annulments, and other judicial adjudications like separations. In most matrimonial cases, the guardianship issues are resolved in an amicable manner and the remaining cases are adjudicated by the Courts.

What is the Meaning of Child Custody?

Guardianship is the bundle of rights and liabilities given to either of the parents in case of legal disputes arising out of matrimony.

When Can the Custody of Child be Sought?

In matrimonial disputes, either father or mother of the child, being a natural guardian, can file custody suit before the court of competent jurisdiction.

Relevant Sections of Laws for Custody Of A Child Litigation:

  • Section 21 of the Domestic Violence Act: Child Custody;
  • Custody of a child is governed by Section 42 of the Divorce Act;
  • Child custody is governed by Section 38 of the Special Marriage Act;
  • Custody of a child is governed by Section 12 of the Guardian and Wards Act;
  • Child custody is governed by Section 26 of the Hindu Marriage Act (HMA);
  • Custody of a child is governed by Section 49 of the Parsi Marriage and Divorce Act;
  • Child custody is governed by Section 6 of the Hindu Minority and Guardianship Act.

Why is the Custody of Child Granted?

This is a legislative provision brought into different legislations so as to ensure that the welfare of the child is assessed by an unbiased institutions like the judiciary. The custody is granted by the Court to safeguard the interests of the Child and to further that his interest is not overlooked in the legal battle of the parents.

Who Can Seek the Custody of Child?

Under ordinary circumstances, the natural guardian of the child who is better suited to take care of the child is given the right to custody of a child. But this right is not absolute, and the courts are obliged to consider the best interest of the minor child.

Bare Acts:

  • The Divorce Act;
  • The Special Marriage Act;
  • The Domestic Violence Act;
  • The Guardian and Wards Act;
  • The Hindu Marriage Act (HMA);
  • The Hindu Minority and Guardianship Act.

Where and How can the Custody of Child be Sought?

The court of competent jurisdiction is a forum approached to adjudicate custody of the child. These disputes are litigated in number of statutes like: the Domestic Violence Act, the Guardian and Wards Act, the Hindu Marriage Act (HMA) and the Hindu Minority and Guardianship Act (HMA). The guardianship petition under HMA can be filed before the Principle Judge, Family Courts in whose jurisdiction the child and parents are residing. Similarly, the relief under DV Act can be sought from JMIC where Domestic Violence proceedings of the case are going on. After filing of the petition, the courts decide the guardianship matter keeping in mind the paramount interest of the Child.

Steps in the Custody Suit:

  • Filing of the Petition/Suit;
  • Reply to be filed by opposite party;
  • Petition’s Evidence;
  • Respondent’s Evidence;
  • Arguments;
  • Judgment.

Major types of  in India:

Physical Custody:

When a parent is given physical custody, the minor is placed under that parent’s guardianship, with the other parent having periodic contact and visitation. The purpose of a custody arrangement like this is to provide the child with a better living in a safe and fulfilling environment while also ensuring that the child does not miss out on the other parent’s attention throughout his or her formative years.

Joint Custody:

Despite Indian courts’ belief that it is best for a minor’s welfare, shared custody of a child does not indicate that both parents must remain together for the child’s sake. While the child is in with the parents, a joint custody means that both parents will jointly take care for the child as per court’s order. The child may spend a few days, a week, or even a month rotating between the parents. This is, at times, seen advantageous to the child because, on the one hand, the child receives both parents’ attention, and on the other hand, parents can participate in their child’s life. However, the Hon’ble Supreme Court have disapproved this practice in a few latest judgments considering the inconvenience faced by the child during such arrangements.

Legal Custody to a court appointed Guardian:

Legal custody of a child is given by the court to any other person by the order of the Court keeping in mind the interest of the Child. It means that the parents have obligation to make all medical, educational, and other arrangements of the child even if the child is living with the court appointed guardian. In some cases, such as when the divorce battle fought between the couple is bitter and the parents are unable to agree on anything (even the custody with one of the parents), the court gives legal custody to someone else other than the parents as a last resort.

The important principles applied by the Courts:

  • The financial stability of the legal guardian;
  • The purpose of the custodian (any malafide, i.e., improper or deceptive intention that may harm the child);
  • The child’s comfort level and affection with the parent, particularly when the youngster is able to express his wishes;
  • The court has complete discretion in determining what is in the best interests of the child;
  • The parents have visitation rights with the child;
  • The rights of parents are irrelevant while deciding custody of the child;
  • In divorce and maintenance cases, the child cannot be a source of inheritance;
  • The court has to ensure that the child is not exploited and his best interest is to be seen.

How can a Lawyer help you in the Child’s custody case?

Custody of a child is not a settled issue in India, and the judicial discretion is exercised on case to case basis keeping in mind the best interest of the child. A child is neither a chattel nor a personal property that can be divided or distributed among parents and the rights of parents are irrelevant while deciding guardianship of the child. The best matrimonial lawyers can provide you with expert guidance and the consequences of your steps in guardianship cases. You can seek a legal advice on your matter from our competent matrimonial lawyers at The Law Codes.


Leave a Comment

Your email address will not be published. Required fields are marked *


Rakesh Sharma

Mr. Rakesh Sharma, advocate is the most experienced member of our team and when it comes t...

The Law Codes

Siddharth Sharma

Siddharth Sharma is one of our leading and versatile lawyers who believe in dynamic lawyer...

The Law Codes

Rohit Samhotra

Dr. Samhotra is a dental graduate, and he continued the dental practice for a few years af...

The Law Codes

Sunny Menghi

Sunny Menghi embarked on his academic journey in Law at Panjab University, earning his bac...

The Law Codes

Ameesha Goel

Ameesha is among our young talents and a graduate of IP University, Delhi. She has a zeal ...

The Law Codes

V. Chaitanya Rao

V. Chaitanya Rao is one of the newer members of The Law Codes team. He brings an air of yo...

The Law Codes
error: Content is protected !!