Custody of Child

Custody of Child and Its Legal Aspects

This article on” Custody of Child Its Legal Aspects” was written by Niroopama Shah, a student at Lovely Professional University.


In modern society, divorce has become rampant and the bad effects of that is where do the children go or with whom do the children live. There are situations where both parents desire custody of the children as well as those where neither parent desires custody. The Supreme Court has ruled in several instances that even because the mother is engaging in an illegitimate, illegal profession, she is given custody. Problems also occur when There are international judicial systems and rulings involved. Additionally, there are issues. In cases when one spouse is accused of killing or aiding in killing the other, then to whom should the custody be given? The courts have also considered the working aspect. Women when determining custody since they might not have time for the children. The courts granting the custody have to look into second marriages of one or both parties.

This paper examines the different legal aspects of custody of a child. The paper discusses the Indian laws regarding child custody. The custody of a child affects the child emotionally and psychologically.


In India, the child is legally owned by both parents. This indicates that the mother has the right to raise the child, to provide for its needs, and to have contact with the child. The father does not have the right to visitation but is equally entitled to raise and care for his children. Which parent is more fit or better suited to care for the child is not a factor in the court’s decision about custody. It would be a tie between the two parents in this situation. Society’s perception of women as the weaker gender informs this custody arrangement. They believe moms should care for children while fathers should be at work, hence they would prefer to grant mothers legal rights over children. Indian child custody rules can be confusing for parents and kids and can result in very stressful circumstances. Indian law bases custody decisions on the fundamental idea of the child’s best interests, which frequently results in drawn-out and complex judicial processes. Due to the twist of these situations, people competing for custody of a child are frequently recommended to get legal counsel from skilled family law specialists. Additionally, it is critical that parents put their child’s happiness and well-being first during this time and work to come to a fair agreement that serves the child’s best interests. A child under the age of five should have custody with their parents, in accordance with the Hindu Minority and Guardianship Act of 1956. [1]The Supreme Court of India has ruled in a number of decisions that custody decisions must be handled on a case-by-case basis with the welfare of the child being the first priority. Continuity and stability, the kid’s age, emotional and physical needs, and the parent’s ability to care for the child are all things the court may take into account. In addition to the aforementioned elements, the Supreme Court has underlined the need of taking the child’s wishes into account while determining custody arrangements. Even in situations where the child is too young to make an educated choice, the child’s preferences are not necessarily binding. The court has also recommended against basing custody judgments on the parents’ financial situation. In its place, the court has encouraged the authorities to consider what is best for the youngster. The court has also emphasized the necessity of routinely reviewing and amending custody arrangements to make sure that they continue to promote the welfare of the kid. When deciding custody disputes, the Supreme Court of India has maintained a child-centric perspective and shown attention to the rights and wellbeing of children.

The rules governing child custody in India, the changes that would be necessary to do away with the idea that one parent is better than the other, and the kind of impact the law has on children. Finally, the study addresses the criteria used by the courts to decide who gets custody. Many times, parental arguments over child custody make children highly violent, which leads to the birth of many criminals. These criminals also become addicted to drugs and other vices, turning innocent kids into criminals after going through difficult times. Such children find it incredibly challenging to live in society. Children are not readily accepted by society either.

Legal aspects

The many legal aspects of child custody . The paper talks about the child custody rules in India. The child is impacted emotionally and psychologically by who has custody of the child. The child finds it tough to choose between his or her parents because they are both entangled in it. The couple forgets the child is suffering throughout their arguments. In the paper the legality of child custody in India is discussed. The study paper offers a straightforward question, “Are we even capable of providing the parents with fundamental human rights or justice?” It highlights the struggles of the parents who have turned into the slaves of the law. Justice can be served to the mother or the father, but not to Justice can be served to the righteous among them as a result, and the other one is devoid of it. The laws governing child custody in India are examined, along with the changes that would be necessary to do away with the idea that one parent is superior to the other. Children frequently become quite combative as a result of the disputes that occur in the parents fight over child custody, leading to the birth of several criminals who engage in drug use and other. Even innocent children turn into criminals as a result of the difficulties. It becomes extremely challenging for enabling such child to function in society the youngsters. It becomes extremely challenging for enabling such child to function in society.

Children are not readily accepted by society either. Sec. 26 of the Hindu Marriage Act [2]and Sec. 38 of the Hindu Minority Act both contain provisions governing custody. Section 6(a) of the Hindu Minority Act, the Special Marriage Act, The Guardians & Wards Act of 1890, and 1956’s Guardians Act. Additionally, the Muslims and Christians each have their own rules regarding the possession of that child Christian law itself does not contain a custody provision, but the problems are resolved. The Indian Divorce Act, which is applicable to all national religions, has resolved the issue. The Divorce Act of 1869[3] has provisions for child custody. It states that the mother should typically have custody of a minor who is under the age of five. It also states that the father is the natural guardian of a Hindu kid in the case of a boy and an unmarried female, followed by him. The Act distinguishes between legitimate and illegitimate children, stating that the guardian in the case of a legitimate kid will be the father and the natural guardian in the case of an illegitimate child will be the mother. Therefore, the Act does not place the onus of main responsibility for an illegitimate child on the father. Again, the act is different in the case of a married girl; it states that the husband is the natural guardian mother of the child adopted. The Guardians and Trustees Act 1890 (GWA) is a secular law dealing with the appointment and proclamation of persons guardians and related matters irrespective of caste, community or creed, though in certain cases the court considers the personal rights of the parties. The HMGA (and other personal laws) and the GWA are complementary and not derogatory others and the courts must read them in harmony In matters of custody and guardianship, the welfare of the minor is paramount.  The word “welfare” must be understood in its broadest sense and must include the morals of the child such as physical well-being and also consider attachment relationships the Hindu Marriage Act says about the custody of the child, Sec 26 of Hindu Marriage Act says the Court may make provisions regarding the custody, maintenance and education of the minor child consistently with the wishes of the child whenever possible. So most of the times the Courts look into the wishes of child but it also takes into consideration the interest and well-being of the child and sometimes it may be contradictory and in such cases the Court gives more importance to the interest of the child. At times the mother may not be willing to keep the child as she may want to remarry or that the job of the mother may require lot of travelling and taking care of the child may not be possible or that the mother is involved in illicit trade, in such cases the custody of the child is given to the father. Section 38, of the Special Marriage Act 1954; [4]speak of almost the same thing as mentioned in the Hindu Marriage Act. It says the Court may make provisions regarding the custody, maintenance and education of the minor child consistently with the wishes of the child whenever possible. The decision of the Courts is based on the term “Just and proper” with respect to the custody of the child. What may be just and proper in one case may not be just and proper in another case and hence the decision of the Court differs from case to case.

Research questions

  • How do Indian courts determine the best interests of the child when deciding custody disputes?
  • How do cultural and societal norms influence child custody disputes in india?
  • Is the mother automatically granted custody of the child?
  • Can child custody arrangements be modified?

Research objectives

  • To explore the impact of different custody arrangements on children, this objective focuses on understanding the effects of different types of custody arrangements.
  • To examine the role of the gender in child custody decisions, this objective involves investigating whether there any gender biases in child custody decisions and exploring how societal norms and stereotypes may influence the outcomes.
  • To purpose recommendations for improving the child custody, based on the findings of the research this objective aims to provide recommendations for enhancing the child custody system, including legal reforms, support series, and intervention aimed at prioritizing the best interests of the child.
  • To study the psychological and emotional aspects of child  custody, these objective focuses understanding the psychological and emotional implications that child custody battles and transitions have on children, parents and other family members involved.


 Here are some Hypotheses on custody of children in India

  • Best interests of the child: courts in India priorities the welfare, safety, and happiness of the child when making custody decisions
  • Mother’s right: traditionally mothers have been favours for custody, especially for young children as they are seen as primary caregivers.
  • Father’s right: in recent years there has been a growing recognition of the importance of the father’s role in a child life leading to increased shared custody arrangements.
  • Child age: younger children are often placed with their mothers but as children grow older their preferences and need may be considered more strongly.
  • Stability and continuity: courts may prefer to maintain stability and continuity in the child life which could influence the choice of the custodial parent.
  • Visitation rights: even if one parent is granted custody the other parent typically has visitation rights to maintain a relationship with the child.

Types of custody

Physical custody

Physical custody [5]awards the custody of a child to a single parent if the other parent is abusive and is considered unfit for parenting. The parent with the custodial rights will be designated as the primary caretaker and will be in charge of the child’s emotional, medical and educational needs. For this purpose, the legal guardianship is bestowed on the person who may potentially serve the child better in terms of these needs.

The earning capacity of the parent isn’t prioritized here, as the parents are assessed based on their potential to provide a safe and secure environment to the child. If a non-earning parent is bestowed with the custody of a child, the earning member is accountable to cater to the financial needs of the children.

Joint physical custody

The affection of a child is oftentimes impossible to comprehend. Most children, except in certain extreme scenarios, prefer to side with both their parents. Such a scenario would entitle both the parents to cherish the legal custody of the child, though physical guardianship would be entrusted to a single parent. Here again, the aspect of income isn’t prioritized over the potential of the parent to provide a safe and secure environment to the child.

Legal custody

The option of legal custody bestows the parents with the entitlement of making vital decisions with respect to the upbringing of a child. The rights so bestowed on them includes the right to cater to the child’s educational, moral, financial, and medical requirements. These aspects are given prominence as it has a direct bearing on the welfare of the child.

Third-party custody

The discretion to bestow the guardianship rights on the hands of a third party are taken when the concerned adjudicators are of the opinion that neither of the biological parents is considered fit to be assigned with the custodianship. In this case, the rights are granted to a third person.

Case law related custody of children

In a landmark judgment the petitioner, Ms Githa Hariharan and Dr Mohan Ram [6]were married in Bangalore in 1982 and had a son in July 1984. In December 1984 the petitioner applied to the Reserve Bank of India (RBI) for 9% Relief Bond to be held in the name of the son indicating that she, the mother, would act as the natural guardian for the purposes of investments. RBI returned the application advising the petitioner either to produce an application signed by the father or certificate of guardianship from a competent authority in her favour to enable the bank to issue bonds as requested. This petition was related to a petition for custody of the child stemming from a divorce proceeding pending in the District Court of Delhi. The husband petitioned for custody in the proceedings. The petitioner filed an application for maintenance for herself and the minors on, arguing that the father had shown total apathy towards the child and was not interested in the welfare of the child. He was only claiming the right to be the natural guardian without discharging any corresponding obligation. On these facts, the petitioner asks for a declaration that the provisions of S. 6(a) of the Hindu Minority and Guardianship Act of 1956 along with S. 19(b) of the Guardian Constitution and Wards Act violated Articles 14 and 15 of the Constitution of India. The  Supreme Court brings to fact the equality of the mother to fulfil the role of a guardian held that gender equality is one of the basic principles of our Constitution and therefore the father by reason of dominant personality cannot be ascribed to have a preferential right over the mother in the matter of guardianship since both fall within the same category. It was like saying gender was not a consideration in deciding matters of child custody and guardianship interest of the child was more important.

In Re Kamal Rudra Das J. expressed the same view vividly that the mother’s lap is God’s own cradle for a child of this age, and that as between father and mother, other things being equal, a child of such tender age should remain with mother. But he also said that a mother who neglects the infant child as she does not want to sacrifice the type of life she is leading can be deprived of custody. In respect of older children, the Courts take the view that the male children above the age of sixteen years and female children above the age of fourteen years, should not ordinarily be compelled to live in the custody to which they object. However, even the wishes of the mature children will be given consideration only if they are consistent with their welfare.

. In the case of Rukmangathan v J. Dhanalakshmi [7]it was laid down that the male above 16 years and female child above 14 years cannot be compelled to live in the custody where are do not wish to live. In Venkataraman v. Tulsi,6 the Court disregarded the wishes of the children as it found that it was done wholesale persuasion and were even tortured. Ordinarily, custody to third persons should not be given except to either of the parents. But where welfare so requires, custody may be given to a third person. In Baby Sarojam v. S. Vijaya Krishnan Nair [8]granting custody of two minor children to maternal grandfather, the Court observed that even if the father was not found unfit, custody might be given to a third person in the welfare of the child.

 In the case of Rosy Jacob v. Jacob A. Chakramakkal [9]the Court held that all Orders relating to the custody of the minor wards from their very nature must be considered to be temporary Orders made in the existing circumstances. With the changed conditions and circumstances, including the passage of time, the Court is entitled to vary such Orders if such variation is considered to be in the interest of the welfare of the wards. Orders relating to custody of wards even when based on consent are liable to be varied by the Court, if the welfare of the wards demands variation. The Court after a decree of judicial separation, may upon application (by petition) for this purpose make, from time to time, all such Orders and provision, with respect to the custody, maintenance and education of the minor children. The Court may from time to time, before making its decree absolute or its decree make such interim Orders.

In a habeas corpus, in Punjab and Haryana High Court case regarding custody of the child the Bench of Anupinder Singh Grewal, J. refused to consider extra-marital affair as a ground to deny custody of child to the mother. The Bench was of the opinion that extra marital affair cannot be the reason to deny custody to the mother. The court emphasized that the mother is the natural guardian of the child till the age of five years in terms of Section 6 of the Hindu Minority and Guardianship Act, 1956, and that the child would require love, care and affection of the mother for her development in the formative years. Similarly, the support and guidance of the mother would also be imperative during adolescence. The Bench remarked that it is common to make allegations on the moral character of a woman. Therefore, allegations against the petitioner being wholly unsubstantiated were not considered relevant to adjudicate the issue of custody of the minor child. Furthermore, the petitioner had permanent residency in Australia. She was earning Rs 70,000/- Australian dollars per annum and a handsome sum would be payable to her for the maintenance of child as well by the Australian authorities. The father was also an Australian citizen but right now had come to India and so the child would be doing better with mother. In the facts of the case the mother/wife had sought the issuance of a writ in the nature of habeas corpus for the release of her minor daughter who was alleged to be in the custody of her husband. The husband was an Australian citizen and the petitioner later joined him

 in Australia. Out of the wedlock, a girl was born. Later on, the couple developed matrimonial differences which led to their separation. The parties arrived in India and by a foul play the child was taken away by husband/father when the petitioner had gone to her parental village. It was further contended by the petitioner that the husband, instead of acceding to the request of the petitioner to handover the child, started threatening her and the petitioner fearing her safety, fled back to Australia. She filed a petition for the custody of the minor child in the Federal Circuit Court, Australia and the court had passed an interim order directing the husband /father to return the minor child to Australia.

On the other hand, the husband submitted that the petitioner was involved in a relationship with Mandeep Kaur v. State of Punjab[10], his brother-in-law which had led to marital discord between the parties. The local Panchayat intervened, and it was agreed that as the petitioner had permanent residency in Australia, the custody of the child would be handed over to the husband. He further submitted that after her return to Australia, the petitioner had preferred an application for the custody of the child and in the application, the Australian address of the husband had been mentioned although she knew that he along with their child was in India. Relying on the judgment Ranbir Singh v. Satinder Kaur Mann,[11] the husband submitted that a decree, which had been obtained from a foreign court on the basis of a fraud would not be enforceable in India.

In another case a petition was filed for a writ of habeas corpus, instituted by Master Anav’s mother, the first petitioner, asking the Court to liberate the minor from his father’s custody by entrusting the minor into hers, is about a young child’s devastating world. Petitioner 1 states that during her stay with her husband, she was tortured physically and mentally, both. Her mother even gave dowry. Later, petitioner 1 realised that her husband had an amorous relationship with her sister-in-law and another girl from the village to which she objected in vain. She was even forced to abandon the marriage and go back to her mother’s home. The discord between parties was mediated and finally ended in mutual divorce. Further, it was stated that the 1st petitioner after the above settlement went back to her mother’s home along with her young son. After some time petitioner 1 claimed that there was an unholy alliance between her brother and her estranged husband to oust her minor son from her mother’s home. The 1st petitioner was beaten up and son was taken away because he thought that she may claim a share for her son in her ancestral property. The court decided that since the child was of tender years, he is not capable of expressing an intelligent preference between his parents, in whose custody, he would most like to be. Also, the Court noticed is the fact that the father is not, particularly, interested in raising the minor. The above-stated discloses the disinclination of the father to bear a whole-time responsibility for the minor’s custody and the complementary inclination of the mother to take that responsibility. The Supreme Court Decision in Ratan Kundu v. Abhijit Kundu, wherein it was held that A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well-being of the child. But the general rule about custody of a child, below the age of five years, is not to be given a go-by. If the mother is to be denied custody of a child, below five years, something exceptional derogating from the child’s welfare is to be shown. It was noted that nothing on record was placed where it could be stated that the mother was unsuitable to raise the minor. But since the child needs both the parents, he must have his father’s company too, as much as can be, under the circumstances. The Court must, therefore, devise a suitable arrangement, where the minor can meet his father and have sufficient visitation while the minor stays with his mother. In an Allahabad High Court judgment, it was decided that the minors not be given into the father’s custody who has instituted the instant petition. Even if the father is a natural guardian but faces criminal charges relating to death of spouse, the custody of children or visitation rights cannot be granted to the natural guardian. In the present matter, Court stated that the custody which is given currently cannot be termed as unlawful. The custody is with the grandmother of the minors’ who has been given custody in the presence of the Station House Officer. The father of the minors’ could say that being the natural guardian of the two minors’ he has the right to seek their custody from the grandmother. It is precisely this right which the father asserts, by virtue of Section 6 (a) of the Hindu Minority and Guardianship Act, 1956. He says he is the sole natural surviving guardian, and therefore, entitled to the minors’ custody. It is, no doubt, true that the father is the minors’ natural guardian under Section 6 (a) of Act, 1956, but the issue about the minors’ custody is not so much about the right of one who claims it, as it is about the minors’ welfare. The issue of welfare of the child cannot be mechanically determined. It is to be sensitively approached, taking into consideration both broad and subtle factors that would ensure it best. The totality of the circumstances on record shows that unless acquitted, it would not be appropriate to place the two minor children in their father’s custody. Bench held that the father is not entitled to the minors’ custody when he is facing criminal charges. Once he is acquitted, it would be open to him to make an appropriate application seeking their custody to the Court of competent jurisdiction under the Guardians and Wards Act, of 1890.

 It was decided by the Bombay High Court that the Welfare of the child as paramount consideration and the custody given to the father of the minor for the mother not being able to take care of the child. In another case, the Court decided in Faisal Khan v. Humera [12]that the Second marriage of a mother is by itself not sufficient to deprive her of custody of her biological child. In S.K. Rout v. Ministry of Health and Family Welfare, Union of India, the SC in this case has coined a new term ‘mirror Order17’ which stresses on interjurisdictional child custody matters. Mirror orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The primary jurisdiction is exercised by the court where the child has been ordinarily residing for a substantial period of time and has conducted an elaborate enquiry on the issue of custody. The court may direct the parties to obtain a “mirror order” from the court where the custody of the child is being shifted. Such an order is ancillary or auxiliary in character, and supportive of the order passed by the court which has exercised primary jurisdiction over the custody of the child. In international family law, it is necessary that jurisdiction is exercised by only one court at a time. These orders are passed keeping in mind the principle of comity of courts and public policy.

 An order of custody of minor children either under the provisions of the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956 is required to be made by the court treating the interest and welfare of the minor to be of paramount importance. It is not the better right of either parent that would require adjudication while deciding their entitlement to custody. The desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are some of the relevant factors that have to be taken into account by the court while deciding the issue of custody of a minor, Gaytri Bajaj v. Jiten Bhalla, (2012) 12 SCC 471 ….[13]

Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them, Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 …[14]

The principles laid down in proceedings under the Guardians and Wards Act, 1890 are equally applicable in dealing with the custody of a child under Section 26  of the Hindu Marriage Act, 1955, since in both the situations two things are common: the first, being orders relating to custody of a growing child and secondly, the paramount consideration of the welfare of the child. Such considerations are never static nor can they be squeezed in a straitjacket. Therefore, each case has to be dealt with on the basis of its peculiar facts, Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409….[15]

Before deciding the issue as to whether the custody should be given to the mother or the father or partially to one and partially to the other, the High Court must (a) take into account the wishes of the child concerned, and (b) assess the psychological impact, if any, on the change in custody after obtaining the opinion of a child psychiatrist or a child welfare worker. All this must be done in addition to ascertaining the comparative material welfare that the child/children may enjoy with either parent, Mamta v. Ashok Jagannath Bharuka, (2005) 12 SCC 452….[16]

Social impacts

Similar to many other nations, India’s child custody laws can have a big social influence on the kids, their parents, and society at large. The social implications can vary based on the particular circumstances and court rulings, however the following are some typical social impacts to take into account:

Children’s Emotional and Psychological Well-Being: The custody arrangement may significantly affect a child’s emotional and psychological well-being. When children are separated from one or both of their parents, they may feel stressed, confused, and insecure. The emotional well-being of a child can also be impacted by the standard of the home environment and the degree of conflict between the parents.

Relationships between parents and children might be influenced by the custody determination. Relationships between parents and children might be influenced by the choice on child custody. The child may have little interaction with the other parent if one parent is granted sole custody, which may weaken their relationship and sense of self. Strong parent-child connections can be maintained under shared custody arrangements.

Financial Affect: Child custody agreements may have a negative financial impact on both parents. In order to help the custodial parent provide for the needs of the child, the non-custodial parent may provide financial support. On the other hand, the non-custodial parent can see a decline in their financial situation.

Gender equality: Especially for young children, custody decisions in India frequently favour mother. Due to the reinforcement of conventional gender norms and expectations, this may have social repercussions for gender equality.

Social stigma: Family, friends, and society may occasionally stigmatize and judge custodial arrangements. Particularly single parents may experience prejudice and social obstacles.

Educational and Developmental Outcomes: A child’s educational and developmental outcomes may be impacted by the stability of the custodial environment. The growth of a child socially and academically might be hampered by frequent movements or disturbances. Decisions regarding child custody can have a big impact on both parents’ lives. The non-custodial parent may feel a feeling of loss and limited involvement in their child’s life, while the custodial parent may struggle to balance work and parenting responsibilities court-related stress and legal stress Parenting can be emotionally and financially taxing during custody disputes. The results of the legal process might be stressful.

It’s crucial to remember that custody decisions should, in ideal circumstances, put the child’s physical, emotional, and psychological welfare first. The social repercussions outlined above emphasize the value of careful and equitable custody judgments as well as the requirement for support networks to assist parents and kids in navigating these trying circumstances. India is increasingly addressing some of these problems and working to improve outcomes for kids and families through legal reforms and changing societal norms.


In India, the courts decide who gets custody of the kids, and they do it with the best interests of the kids in mind. When parents are fighting over child custody, it’s critical to approach the matter with an eye for the child’s welfare. The following advice can help you navigate child custody disputes in India:

Consider mediation or negotiation as an alternative to litigation before taking legal action. Open dialogue and compromise can often lead to the peaceful resolution of conflicts. In order to reduce conflict and identify common ground, mediation can be especially beneficial.

Child’s Best Interests: The child’s best interests should always come first in disputes over child custody. When determining custody, the courts should consider the child’s physical, emotional, and psychological well-being.

Age and Preference of the Child: Age can be a factor in custody decisions. While older children’s preferences should be taken into account, younger children may need more support and stability. If the youngster is old enough to express an informed view, courts should give their significant consideration.

Parenting Capabilities: Courts should consider both parents’ parenting skills. The ability to offer a secure environment, emotional support, financial stability, and a willingness to encourage the child’s relationship with the other parent are all things to take into account.

Equal custody rights are granted to the mother and the married father. The father has a right to joint custody of the child until a court judgment specifies otherwise. age of young children. Typically, the age restriction ranges from 18 to 21. As the children get older throughout the course of the custody dispute, the court will take any alternative arrangement into consideration.

The court wants to know the financial situation of both parents as well as their intentions to keep the child(ren) with them or not at the time of the case. It implies that the court’s ruling will take into account the wishes of both parents.

The court will take note of how the young children get along with each parent. Each parent’s physical and emotional health will be taken into account during the case time.

The court will want to establish whether each parent fosters or supports the relationship with the kid and with the other parent. If a child is born into a marriage, the father is automatically granted parental responsibility. If either parent has ever neglected, abused, or physically violent their child in the past.

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The legislation has not changed much when considering the ‘custody of children’ provisions. but its good that the Supreme Court has given new dimensions to the child custody matters. It is righteous that the mothers are not looked by the Courts from the lens of character, financial stability, distance, career-oriented mothers, we have come a long way from Geeta Hariharan case. The supreme is expanding its arenas and delving into new facets and incorporating the new socio and legal changes happening in the society. The custody is given to mothers inspite of issues relating to extramarital affairs, issues of long distance or mothers with financial stability. The only consideration now stands is ‘interest of child’ and not much law has been looked into. India has a strong tradition of family bonds and child care. In Indian society, children are considered blessings from the mother and father. The idea of sharing parental responsibilities evenly is deeply rooted in our culture.

The custody of a child remains one of the most sensitive and convoluted issues when the parents split up. As you can see, custody is governed mainly by what the judges decide. Between the various religious laws and the uniform laws enacted by the state, there’s been a lot of controversies. It doesn’t matter what perspective you take on the law.

A child’s future shouldn’t be put at risk. Resolving various pieces of legislation is mainly about the welfare of the child and social security. Any legal issues need to be addressed and then fixed.


[1] visited 10 September 2023)

[2] Paras Diwan, Family law 1, (New Delhi, 1st edn.,1983) last visited 10th September 23

[3] last visited 10th September 2023)

[4] ( last visited 10th September 2023)

[5] (last visited 10th September 2023)

[6] Ms Githa Hariharan and another v. Reserve Bank of India and another (AIR 1999, 2 SCC 228)

[7] (last visited 10th sept. 2023)

[8] Baby Sarojam vs S. Vijayakrishnan Nair on 7 February 1992 (last visited 10th Sept. 2023)

[9]  ( last visited 10th September 2023)

[10]  (last visited 10th sept. 2023)

[11] Ranbir Singh vs Satinder Kaur Mann And Ors. on 30 May, 2006 (last visited 10th sept. 2023)

[12]  (last visited 10th sept. 2023)

[13]  (last visited 10th sept.2023)

[14]  (last visited 10th sept. 2023)

[15] (last visited 10th sept. 2023)

[16]–Anju-Versus-Ashok-Jagannath-Bharuka-2005-01-20#:~:text=Mamta%20%40%20Anju%20v,637%20of%202005 (last visited 10th sept 2023)

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