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.

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