In India, the custody of a child after divorce is determined by the courts based on the best interests of the child, rather than granting automatic rights to either parent. Custody laws vary depending on the religion of the parents and are governed under different statutes, such as :

Hindu Minority and Guardianship Act, 1956 (for Hindus)

The Guardians and Wards Act, 1890 (applies to all religions in certain cases)

Muslim Personal Law

Other personal laws for Christians, Parsis, etc.

Table of Contents

Custody Types.

1. Physical Custody :

The child resides with one parent, and the other parent has visitation rights.

2. Joint Custody :

Both parents share custody, with the child alternating between them for specified periods.

3. Legal Custody :

Decision-making rights (regarding education, health, etc.) are shared between both parents, even if the child resides with one parent.

Factors Courts Consider.

1. Child’s Welfare :

This is the paramount consideration, including the child’s emotional, physical, and educational needs.

2. Age of the Child :

For children below 5 years, custody is typically granted to the mother, unless proven unfit.For older children, the court considers their preferences if they are mature enough to express them.

3. Parental Fitness :

The financial stability, emotional capability, and ability to provide a safe environment are assessed.

4. Child’s Preference :

For children of sufficient age and understanding, their preference is taken into account.

5. Conduct of Parents :

Any history of abuse, neglect, or behavior harmful to the child is considered.

Custody Outcomes.

1.Mother’s Right :

Generally favored for young children or in cases where the father is unable to provide a suitable environment.

2.Father’s Right :

May be granted if the mother is found unfit or if the child’s welfare demands it.

3.Shared Custody :

Courts may encourage shared parenting to ensure the involvement of both parents.

Ultimately, the court decides custody based on ensuring the overall welfare, development, and happiness of the child. If you have any doubts about this, it is best to speak to a lawyer about your case and seek advice, as this will definitely help you.