TomorrowMakers

This article explores who gets custody of a child in Indian society in the case of a divorce. The paramount consideration is the welfare and interest of the child, as established by the Court.

Mother or father – who gets the custody of a child after divorce?

The journey of separation is often ugly, but settling the matter of child custody can be even uglier. It is indeed sad to think of the agony that couples go through when a divorce happens. But the pain is all the more when one thinks of the suffering that children experience in the process, and the struggle for custody.

What is custody?

As commonly understood, custody means ‘guardianship’. The first thought that possibly comes to the minds of divorced parents is – who will get a child’s custody upon separation? Besides love, there are other reasons why each parent wants to win custody after a divorce, such as division of parental property, financial support for the child’s education, and visiting rights, among other things.

The ‘best interest’ doctrine for child custody

The Supreme Court established that the ‘first and paramount consideration’ is the welfare and interest of the child and not the right of the parents. “Custody of the child shall be handed over to the person who fosters him or her with care, love, and affection,” said Hon’ble Mr Justice Vinod Prasad.

As per the laws on Indian child custody, both divorced parents have equal rights over the child even after legal separation. One parent winning custody doesn’t mean the other ceases to be the parent and loses all rights over the child.

If the child is less than 18 years, gaining custody only implies with which parent the child will physically stay. In other words, the custodial parent becomes the primary caregiver responsible for emotional, medical, and educational needs of the child, while the non-custodial parent retains the right to meet the child. 

According to the law, even if a marriage is annulled, the two ex-spouses continue to be natural guardians of the child.

Related: Divorce: Who has rights to the property?

Do mothers have an upper hand?

In most cases, the family court grants the child’s custody to one parent, while access to the child is granted to both. The question often asked is: do mothers have an upper hand in child custody in India? According to data, of around 90 divorce cases in a particular year, custody was granted to the father in only two cases. In many cases, fathers believed they can claim custody only when the child attains a particular age.

Case-to-case decisions regarding child custody

In several landmark judgements, while assigning custody, the Courts have given importance to the ‘best interest of the child’, and not the ‘right of the parent’. The decision is taken on a case-to-case basis. Courts also consider the choice of children who are above 9 years of age. When the child is less than 5 years of age, custody is usually given to the mother.

Maintenance in joint custody

In the case of joint custody, both parents should break down all of the child’s expenses, including for emergencies, and decide how each of them will contribute. There can be a judge or a mediator to decide how they will divide cash outlay on the child. 

The split need not be 50:50; if one parent makes more money, they can chip in more. And though every case may be different, it is better to arrive at a clear understanding on what one is expected to pay.

Related: Going through a divorce? Here's what happens to your insurance policies

As child custody cases are usually very tiresome and emotionally draining, the whole process of divorce proceedings and child custody requires you to remain strong and proactive. The child’s future must be kept in mind while taking any final decision.

Child custody laws in India

  • Under Hindu Law: Provisions under the Hindu Marriage Act 1955 (Section 26), the Special Marriage Act 1954 (Section 38) and the Hindu Minority and Guardianship Act 1956.
  • Under Muslim Law: Allows only the mother to seek custody of her child(ren) under the Right of Hizanat.
  • Under Christian Law: Allows for child custody under the Divorce Act 1869 (Section 41) only after separation decree is granted.
  • Under Parsi Law: Allows for child custody under the Guardian and Wards Act 1890 and gives high importance to the welfare of the child.

Related: Tax implications you must be aware of when getting a divorce

Types of child custody

  • Physical custody: The child is handed over to the custodial parent for living and the other parent is allowed to visit, meet, and interact at regular intervals.
  • Joint custody: The child lives with both parents on a rotational basis and the duration of stay may vary from several days to months, based on mutual agreement.
  • Sole custody: The child is handed over entirely to one parent in case the court finds the other parent to be abusive, unstable, offensive, or incapable of raising the child.
  • Third-party custody: In this case, a guardian or third person gets the custody instead of the biological parents. This is also often termed as non-parental custody.