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.

Cookies on NRI Legal Services Sites

We use cookies for a number of reasons, such as keeping NRI Legal Services Sites reliable and secure, personalising content and ads, providing social media features and to analyse how our Sites are used.

Manage cookies