Child Custody Law in India – Flowchart

The Guardians and Wards Act, 1890 is the universal child custody law and guardianship in India, regardless of the child’s religion. Child Custody falls within the purview of Family law. Interim orders concerning the custody of the child can also be passed under different sections of the Family Laws.  Family laws or acts include the Hindu Marriage Act, The Special Marriage Act, The Indian Divorce Act and Parsi Family Law.

Types of Child Custody Laws in India are:

1. Sole Custody under Child Custody Law

   A parent who has “sole custody” of the child means that he or she has a court order that grants both,

   1. Legal custody of the child i.e. the legal authority to make all  important decisions regarding your child’s life including education, residence, social, attire and all other aspects. The sole legal custodian parent does not need consent or permission of the other parent to make any decisions concerning the child’s life.
   2. Physical custody i.e. the child lives with the parent in his or her household. The sole legal custodian parent is the cohabitant of shared living space with the child.

2. Mother’s Right to Child Custody

   If the child is of a tender (very young) age, less than 5 years of age, then the Mother is assumed to have the right to child custody and is the primary caretaker and custodian of the child. Also, unmarried mother’s with children are also regarded as the primary caretaker and custodian of the child, unless the father asserts his child custody rights.

3. Father’s Right to Child Custody

4. The Guardian’s and Wards Act, 1890

5. Non-custodial parent’s child custody law

6. Section 26, The Hindu Marriage Act, 1955

7. Section 38, Special Marriage Act, 1954

8. Section 41, The Indian Divorce Act, 1869

9. Section 49, Child Custody Law under Parsi Law

10. Child Custody Law under Muslim Law (Mother, Father, DeFacto Guardian)

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