Legal custody of a child born after divorce or separation of parents

Legal custody of a child born after divorce



Hindu Marriage Act contains the law governing the legal custody of the child for Hindus.

The court intervenes in the custody matters in three ways. So the right to custody from time to time is:

  • By imposing
  • By altering
  • By revoking

The court decides it based on the factor as what will be at most beneficial for the child:

  • The custody will go to the mother if it is more secure for child’s future.
  • The custody will go to the father if it is more promising for child’s future.

Custody can be shifted to mother or any other relative with whom the child’s future is more secured. Therefore, the court has the power to intervene in the custody matters from time to time. Court might revoke the custody and give it to the opposite party if found not affirmative with the first party.


Within the period of 60 days the court can dispose of the matters relating to the custody of the child as the court is aware of the trauma caused to the child and hence, imposes statutory time limit.


The law related to this issue is Hindu Minority And Guardianship Act. The natural guardian irrespective of the minor’s will is:

  • Till the age of 5, the natural guardian will be the mother of the child irrespective of the fact that whether the child is a boy or a girl and then will be given to father later on.
  • Cases where adopted son’s custody is contested, the natural guardian will be the first adoptive father and then adoptive mother.


The High Court watched the wishes of child, it is welfare before providing custody. There is a presumption that parents will do their best to promote welfare to a minor child.


Muslim law gives custody of a small child to the mother only as she can take proper care and attention can be given to child.

This right can be forfeited if:

  • She fails to take care of the child.
  • She leads an immoral life.
  • She resided at distance from father’s place during marriage.
  • She marries a person within prohibited degrees (not related to minor).

The custody will be given to other female relations of the child, in case of mother death, the custody of boy below 7 and girl below puberty.

Custody and Rights of A Child in Matrimonial Disputes

Child Custody

This simply means that after the divorce of parents, the custody of child would be given to whom?

The custody is decided on the basis of a non – negotiable instrument “best interest and welfare” of the child which means that the one who will serve the child emotionally, educationally, medically, and socially and fulfill these needs will get the custody of the child.

Because of divorce and custody battles or quarrels, the innocent child gets caught up in the legal and psychological warfare between both the parents.

After the dissolution of marriage, custody of a child can be given as:-

  • Sole custody:- One parent is granted custody & the other is proved unfit for the
  • Joint physical custody:– In this, a child will reside with one physically & will take care of the child primarily but both the parents will have legal custody.
  • Third party custody:- In this, the third person will get child’s custody instead of their real or biological parents by the court.


Normally, the mother gets the custody of child who is under the age of 5. Custody of an older boys and older girls is decided by the child’s interest but usually fathers get custody of older boys and mother gets the custody of older girls. The child is not given to mother if proven ill-treat.

The child who is above 9, his choice is taken into consideration.


  • The Court is then an ultimate guardian of the child in order to protect child’s property. Hence, is called Parens Patriae.
  • The custody will not be determined by the earning capacity of the parent, but the custody is given to whom who provides safe and secure environment.


  • Each child can defend or downgrade either parent
  • Each child can take over the any parental responsibility for making custody decision.
  • He can maintain relationship independently with each parent.
  • He can be financially supported by both parents.
  • He has a right to spend time with both parents on regular basis.
  • Each child has a right for getting proper care arrangement when not supervised by parents.
  • He has a right to be nurtured, guided, supervised etc. by each parent.
  • Each child has the right to know about both the parents.



A landmark judgment pronounced by the Supreme Court regarding the custody of the child who was suffering because of parents’ matrimonial disputes.

The court said that under Hindu Minority Guardians And Guardians Act, the custody of the child would be given to mother if child is less than 5 years which was earlier given to the father and also said that father can be the guardian of the minor’s property. The custody of child who is an infant can be given to the father only in case of strong reasons.