In short. Custody in India is decided on the welfare of the child, under the Guardians and Wards Act 1890, the Hindu Minority and Guardianship Act 1956 and Section 26 of the Hindu Marriage Act. Children under five ordinarily stay with the mother. Courts weigh who has been the main carer, stability, education, health, the child's own preference and each parent's conduct, and usually give the other parent regular contact.
Custody cases are the hardest part of most divorces, because both parents usually love the child and both believe they are the right person to bring the child up. The law does not try to decide who is the better person. It asks a narrower question: given what this child needs now, and the arrangements each parent can actually offer, where should the child live, and how should the other parent stay in the child's life?
This post explains how courts answer that question: the law, the factors, the role of the child's own wishes, the kinds of custody orders, the steps in a Delhi family court and the mistakes that hurt a parent's case. How the parent without custody gets time with the child is covered in our post on visitation rights for a father. For divorce and family cases generally, see our family and divorce law page.
- Laws
- Guardians and Wards Act 1890; Hindu Minority and Guardianship Act 1956; Section 26 Hindu Marriage Act
- Test
- Welfare of the child, above the rights of either parent
- Child under 5
- Ordinarily with the mother (Section 6(a) HMGA)
- Forum
- Family court where the child ordinarily resides (Section 9 GWA), or the court hearing the divorce
- Appeal
- To the High Court within 30 days (Section 19, Family Courts Act 1984)
- Finality
- Never final; can be changed when circumstances change
Who gets custody of a child after divorce in India?
No parent gets custody automatically. The court gives custody to the parent whose care will serve the child's welfare more fully, and usually gives the other parent regular access. Section 13 of the Hindu Minority and Guardianship Act 1956 says the welfare of the minor is the deciding consideration, above any right of the father or mother. Section 17 of the Guardians and Wards Act 1890 says the same for every religion.
In practice, the court starts with the child's present arrangement and asks whether there is a good reason to change it. A child who has lived with the mother for two years since separation, is settled in school and is doing well will not be moved unless something is wrong. That is why the period immediately after separation matters so much, and why interim custody orders often shape the final result.
Mothers get custody more often than fathers in Indian courts, especially of young children, but that is the result of the welfare test applied to typical facts, not a rule. Fathers do get custody where they have been the main carer, where the mother cannot look after the child, or where the child is older and clearly wants to live with the father. Each case turns on its own facts.
Custody and guardianship are not the same thing
Guardianship is the legal authority to make decisions for a child and to deal with the child's property. Custody is the day-to-day care of the child: where the child lives and who looks after the child. A parent can remain a guardian without having physical custody, and most custody orders leave both parents as guardians while deciding where the child lives.
Under Section 6 of the Hindu Minority and Guardianship Act, the father is the natural guardian of a Hindu minor and, after him, the mother. In Githa Hariharan v Reserve Bank of India (1999), the Supreme Court read "after" to mean "in the absence of", so the mother can act as natural guardian while the father is alive if he is absent or not taking care of the child. In custody cases, this matters less than people think, because the welfare test overrides the order of guardianship.
Questions about a child's property, bank accounts or a sale of land in a minor's name belong to guardianship, and are covered in our post on guardianship of a minor's person and property. This post is about custody: where the child lives.
The law that applies to custody cases
Several statutes overlap. Family courts read them together, always through the welfare test.
Section 26, Hindu Marriage Act 1955
In any divorce or other proceeding under the Act, the court can make interim orders and provisions in the decree about the custody, maintenance and education of minor children, consistent with their wishes wherever possible, and can revoke or vary those orders later. The Special Marriage Act 1954 has a similar provision in Section 38.
Sections 6 and 13, Hindu Minority and Guardianship Act 1956
Section 6 names the natural guardians and provides that custody of a child who has not completed five years shall ordinarily be with the mother. Section 13 makes the welfare of the minor the deciding consideration in appointing or declaring a guardian.
Sections 7, 9, 12, 17 and 25, Guardians and Wards Act 1890
Section 7 lets the court appoint or declare a guardian. Section 9 says the petition is filed where the minor ordinarily resides. Section 12 allows interim orders for temporary custody. Section 17 lists the matters the court considers, including the child's age, sex, religion, the character and capacity of the proposed guardian, and the child's preference if old enough to form one. Section 25 lets the court order a child to be returned to the guardian's custody.
Personal laws
Muslim law gives the mother a right of custody (hizanat) of young children, Christian and Parsi divorce laws have their own custody provisions, and the Special Marriage Act covers civil marriages. Under all of them, the Guardians and Wards Act applies and the welfare of the child decides the case.
Does the mother always get custody of a young child?
For a child under five, the law leans towards the mother. Section 6(a) of the Hindu Minority and Guardianship Act says custody of a child who has not completed five years shall "ordinarily" be with the mother. The word is "ordinarily", not "always". A father can displace it by showing that the mother's care would actually harm the child, for example through neglect, serious untreated illness or abandonment, but the bar is high and allegations without evidence do not meet it.
For older children there is no presumption either way. Courts often keep young girls approaching adolescence with the mother, and they listen carefully to older boys and girls about where they want to live. A mother who has been the main carer will usually keep custody of school-age children too, but the reason is continuity of care, not her sex. Where the father has done the daily caring, the same logic works in his favour.
What courts look at when deciding the child's welfare
Welfare is wider than money or comfort. In Nil Ratan Kundu v Abhijit Kundu (2008) the Supreme Court said it covers the child's physical, moral and emotional well-being and that the court must decide each case on its own facts. These are the points family courts actually examine.
- Who has been the main carer. Who wakes the child, feeds, bathes, takes to school, attends parent-teacher meetings and sits up when the child is ill. Courts take this seriously, and school records often settle it.
- Continuity and stability. The child's present home, school, friends and routine. Moving a settled child needs a good reason.
- Age and sex of the child. Infants and young children with the mother ordinarily; older children's needs and wishes count for more.
- Education and health. Which parent can support schooling, special needs or ongoing medical care in practice, not just on paper.
- Each parent's conduct towards the child. Violence, substance abuse, neglect or using the child against the other parent weigh heavily. Conduct towards the spouse matters less unless it affects the child.
- Willingness to support the other relationship. A parent who will keep the child connected to the other parent is often preferred to one who tries to shut the other out.
- Support at home. Grandparents or other family who help with care, and the parent's working hours. A working parent with reliable help is not at a disadvantage.
- The child's own preference. If the child is old enough to form an intelligent preference, the judge will usually speak to the child.
- Siblings. Courts are reluctant to separate brothers and sisters.
Does the child's wish count, and at what age?
The child's wish counts once the child is old enough to form an intelligent preference, which there is no fixed age for. Section 17(3) of the Guardians and Wards Act lets the court consider the preference of a minor who is old enough. Family court judges in Delhi usually talk to the child in chambers, without either parent present, sometimes over two or three meetings. Children of about eight or nine and above are often asked; a teenager's clear and reasoned preference will usually carry great weight.
The court does not simply follow what the child says. It tests whether the preference is the child's own or has been coached. A child who repeats adult phrases, refuses to give any reason, or rejects a parent he or she was close to until recently raises a concern about parental alienation, which the Supreme Court recognised as harmful in Vivek Singh v Romani Singh (2017). A parent who turns a child against the other parent often loses credibility with the court, and sometimes custody itself.
In custody matters that come to Advocate B.K. Singh's office, the first thing he asks the client is not who is the better parent but what the child's ordinary day looks like right now: who drops the child at school, who helps with homework, who the child calls when frightened. The answers usually tell you more about where the case will go than any allegation in the petition.
Kinds of custody orders Indian courts make
| Type of order | What it means | When courts tend to use it |
|---|---|---|
| Sole physical custody with access to the other parent | Child lives with one parent; the other gets fixed visiting time, overnight stays and holidays | The most common order, especially where parents live far apart or cannot cooperate |
| Joint or shared custody | Child spends substantial time living with each parent, for example alternate weeks or split school holidays | Where parents live close by, can communicate and the child is old enough to manage two homes |
| Joint legal custody | Both parents share major decisions on schooling, health and religion, whoever has physical custody | Often added to a sole custody order so the other parent keeps a say |
| Supervised access | The other parent meets the child at court, a mediation centre or in the presence of a third person | Where there are safety concerns, or the child has not met the parent for a long time |
| Custody with a third person | A grandparent or relative is given custody | Rare; where both parents are unable or unfit, or after a parent's death |
Shared parenting is becoming more common in Delhi family courts, mostly through consent terms in mutual divorces. It works only when the parents can talk to each other without the child carrying messages. Courts do not force shared custody on parents who are at war, because the child pays the price.
Can a father get custody of a child in India?
Yes. A father gets custody where the facts show that living with him serves the child better: he has been the main carer, the child has lived with him since separation and is settled, the mother has left the child with him, or the child is older and clearly prefers him. Fathers also get custody where the mother cannot look after the child because of illness, addiction or a lifestyle that leaves the child unattended.
What does not work is a claim based only on money. A father with a higher income is not given custody for that reason; the court simply orders him to pay child support to the mother. Nor does the court give custody to a father because the mother has remarried or started working. If you are a father who wants custody, the evidence that counts is your actual involvement in the child's daily life, documented over time: school communications, medical visits, photographs of ordinary days rather than special occasions, and the views of people who know the child.
Do remarriage, a job or allegations of character change custody?
On their own, none of these decides custody. A parent's remarriage is examined only for its effect on the child: how the step-parent treats the child, whether the child is settled in the new home, and whether there are other children. A mother who works full time does not lose custody if she has reliable care arrangements, and neither does a father.
Allegations about a parent's character are common in custody petitions and usually do more harm to the parent making them than to the target. Courts want evidence that the conduct affects the child. A relationship after separation, or an old quarrel, is not that evidence. Violence towards the child, drug or alcohol abuse, or exposing the child to danger are a different matter, and courts act on them quickly when they are shown with records. Criminal cases between the spouses, such as a cruelty complaint, do not by themselves decide custody, though the facts behind them can be relevant.
How to file for child custody in a Delhi family court
The steps are broadly the same at Saket, Tis Hazari, Karkardooma, Rohini, Dwarka and Patiala House, and at the family courts in Noida and Ghaziabad.
Pick the right court
If a divorce case is pending, apply for custody in it under Section 26 of the Hindu Marriage Act (or the matching provision of your marriage law). If not, file a guardianship and custody petition under the Guardians and Wards Act in the family court where the child ordinarily resides.
File with an application for interim custody or access
The petition sets out the child's history, present arrangements and why the order you seek serves the child. An application under Section 12 GWA for interim custody or access goes with it, because the main petition takes time.
Notice and first hearing
The court issues notice to the other parent. At the first hearing the judge may meet the parents, ask about the child's routine and make a short interim arrangement for meetings.
Counselling and mediation
Most custody cases are referred to the family court counsellor or the mediation centre. Many parents agree a parenting plan here. Any agreement is recorded by the court and becomes an order.
Interaction with the child
The judge usually speaks to the child in chambers, alone or with a counsellor. Parents should not prepare the child for this; judges notice coaching.
Evidence
Each side files evidence affidavits and documents, and witnesses are cross-examined. School and medical records carry more weight than character witnesses.
Final order and appeal
The court decides custody and access. An appeal lies to the High Court within 30 days under Section 19 of the Family Courts Act 1984.
A custody petition in a Delhi family court can take one to three years if fully contested. The interim arrangements made in the first few months often become the final ones, so get them right.
Documents that help in a custody case
About the child
- Birth certificate and Aadhaar
- School admission form, report cards, attendance records and communications showing which parent deals with the school
- Vaccination card and medical records, with names of the parent who attended
- Records of any special needs, therapy or ongoing treatment
About your care
- A short diary of the child's routine and who does what
- Photographs and messages showing ordinary involvement over time
- Your work hours and the care arrangements while you work
- Details of family members who help, and where they live
About the home and finances
- Proof of residence and a description of the child's room or space
- Proof of income, for child support as much as for custody
- Distance to the child's school
- Copies of any earlier orders, FIRs or DV Act proceedings involving the child
A custody decision worked through
Here's a made-up example. Pooja and Rahul separated when their son Aarav was six. Pooja moved back to her parents in Rohini with Aarav and changed his school. Rahul, who lives in the old flat in Dwarka, filed for custody, arguing that he earns three times what Pooja does, that Aarav's old school is better, and that Pooja leaves the boy with her mother while she works.
The family court looked at the facts. Aarav had lived with Pooja for eighteen months. His new school's reports were good and his attendance was regular. Pooja handled the parent-teacher meetings; Rahul had attended one. Aarav's grandmother looked after him for three hours after school, which the court saw as support, not neglect. When the judge spoke to Aarav, he said he liked his school and his cousins in Rohini, and that he missed his father and wanted to see him more.
The court left custody with Pooja, ordered Rahul to pay child support including school fees, and gave Rahul alternate weekends with an overnight stay, half of each long vacation and daily video calls. It also made both parents joint guardians for decisions about schooling and health. Rahul's income was relevant only to child support. The result would have been different if Aarav had been living with Rahul and doing well there.
Interim custody while the divorce is pending
Interim custody is decided early, on affidavits and a short hearing, and it often decides the final outcome in practice. Under Section 26 of the Hindu Marriage Act or Section 12 of the Guardians and Wards Act, the court can fix where the child lives during the case and how the other parent meets the child. The court usually avoids disturbing the child's existing arrangement at this stage unless there is a risk to the child.
Two practical points follow. First, a parent who leaves the matrimonial home should think carefully before leaving the child behind, because the court will see the child as settled where the child is. Second, a parent who removes a child by force or deceit, for example by taking the child from school without telling the other parent, will usually be ordered to return the child, and loses credibility for the rest of the case. If a child has been taken and kept away, apply for interim custody at once rather than waiting for the main case.
Custody in a mutual consent divorce: write the parenting plan carefully
In a mutual consent divorce, custody is settled by agreement and recorded in the settlement and the petition. The court will usually accept what the parents agree, but it still checks that the arrangement is in the child's interest. Vague terms such as "reasonable access" cause most of the later disputes. A good parenting plan says where the child lives, which weekends, which half of each vacation, festivals and birthdays, how video calls work, who decides schooling, how travel abroad is handled, and who pays for what.
It should also say what happens if a parent moves city, because that is the most common reason a mutual custody arrangement breaks down. For the divorce procedure itself, see our post on mutual consent divorce in Delhi. Where the parents cannot agree on custody but agree on everything else, the family court's mediation centre is usually the right place to work it out.
What if a parent takes the child to another city or abroad?
If a parent removes a child in breach of a custody order, or without the consent of the other parent, the other parent can apply to the family court for return of the child under Section 25 of the Guardians and Wards Act, and in urgent cases file a habeas corpus petition in the High Court. Habeas corpus is used in custody disputes where the child's removal is illegal or the child's welfare demands immediate return; our post on habeas corpus petitions explains how it works.
Removal abroad is harder. India is not a party to the Hague Convention on child abduction, so return depends on the courts of the country where the child is taken, or on Indian courts where the child is brought into India. Indian courts decide such cases on the child's welfare, not automatically in favour of the foreign court's order. If you fear a child will be taken abroad, ask the family court for an order restraining travel without permission and directing that the child's passport be deposited. NRI cases have their own complications; see NRI divorce and foreign decrees.
Mistakes that damage a custody case
Courts see the same mistakes repeatedly. Avoid them from the first day.
- Do not use the child to carry messages, or discuss the case in front of the child.
- Do not stop the other parent's contact to punish them for unpaid maintenance; the two are separate.
- Do not prepare or coach the child for the meeting with the judge.
- Do not take the child from school or the other parent's home by surprise.
- Do not file allegations about the other parent's character without evidence that touches the child.
- Keep school, medical and daily-care records from the date of separation.
- Show up for every meeting or video call the court fixes, and on time.
- Keep communication with the other parent short, polite and in writing, about the child only.
- Tell the court promptly about any change of address, school or job.
Can a custody order be changed later?
Yes. Custody orders are never final in the way other decrees are. Section 26 of the Hindu Marriage Act and the Guardians and Wards Act both let the court revoke, suspend or vary custody orders when circumstances change. Common reasons include a parent relocating, the custodial parent's illness or neglect, the child growing older and expressing a clear preference, or repeated refusal to allow the access the court ordered.
An application to change custody needs evidence of a real change since the last order, not a fresh airing of old complaints. Courts are cautious about moving a child who is doing well, and they will usually adjust access before they transfer custody. If your case may go further, the Delhi High Court hears appeals from family courts, and the Supreme Court hears custody matters by special leave in limited cases.
If you want your custody papers read before you file or reply, the team of Advocate B.K. Singh can look at them and tell you what the court is likely to focus on and what records you should start keeping now. You can reach us through the online legal enquiry form, or read how we handle cases at the Delhi family courts.
Frequently asked questions
Who gets custody of the child after divorce in India?
The parent whose care serves the child's welfare more fully. There is no automatic right for either parent. The court looks at who has been the main carer, stability, the child's age and wishes, and each parent's conduct towards the child.
Till what age does a mother get custody of a child?
The Hindu Minority and Guardianship Act says a child under five should ordinarily be with the mother. After that there is no fixed age; the court decides on welfare. Many mothers keep custody of older children too because they have been the main carer.
Can a father get custody of a girl child?
Yes, though courts look carefully at the needs of a girl approaching adolescence. A father who has been the main carer, with the child settled in his home, can get custody. Higher income alone is not a reason.
At what age can a child choose which parent to live with?
There is no fixed age. The court considers the preference of a child old enough to form an intelligent one, usually from about eight or nine years. A teenager's reasoned choice usually carries great weight, but the court checks it is not coached.
Is joint custody possible in India?
Yes. Courts grant joint or shared custody, usually where parents live near each other and can cooperate. It is most common in mutual consent divorces where parents agree a detailed parenting plan.
Where do I file a child custody case?
In the family court where the child ordinarily resides, under the Guardians and Wards Act. If a divorce case is already pending, custody can be decided in that case under Section 26 of the Hindu Marriage Act.
Does a working mother lose custody?
No. A working parent with reliable care arrangements is not at a disadvantage. Courts look at the child's actual care and stability, not at whether the parent works.
Does remarriage of the mother affect custody?
Not by itself. The court examines how the remarriage affects the child: the step-parent's attitude, the child's adjustment and the home. Custody changes only if the child's welfare is affected.
How long does a child custody case take in Delhi?
A contested custody petition can take one to three years. Interim custody and access are usually fixed within the first few months, and those arrangements often shape the final order. Many cases settle in mediation much sooner.
Can I stop my spouse from taking our child abroad?
You can ask the family court for an order restraining travel abroad without permission and for the child's passport to be deposited. If the child has already been removed, urgent proceedings in the family court or the High Court may be needed. India is not a party to the Hague Convention on child abduction.
Can a custody order be changed later?
Yes. Custody orders can be varied when circumstances change, such as relocation, neglect, the child's clear preference or repeated denial of access. You must show a real change since the last order.
Does the parent without custody still have to pay for the child?
Yes. Custody and child support are separate. The parent without custody is usually ordered to pay maintenance for the child, including school fees, whatever the access arrangement.
Written and reviewed at B.K. Singh & Associates
Advocate B.K. Singh
Founder of B.K. Singh & Associates. MCA, LL.B., LL.M., with more than twenty years of practice before the Supreme Court, the Delhi High Court, district courts and tribunals across Delhi NCR. This article explains the general law as of 24 October 2026; it is not legal advice on your facts.