family, children, father

Child Custody


Child custody is a very important issue. If a marriage ends up in the way of divorce, the most vital question is, who shall be getting the custody of the child? The parties in this case are mother and father. While rendering this decision, the law keeps in mind the welfare of the child and accordingly decide that whether the mother or the father gets the custody. The factors that constitute the welfare of the child are:

  1. Safe-keeping of the child.
  2. Ethical upbringing.
  3. Good education to be imparted.
  4. Economic wellbeing of the guardian.

In the case of custody, the court is not very strict and it doesn’t stick to a particular process. The welfare of child is superior to the rights of the parents in this case. In a judgment of Carla Gannon vs. Abhijit Kundra while determining the final decree it was held that the child’s welfare was the supreme consideration, irrespective of the rights and wrongs that the parents another case of Nil Ratan Kundu vs. Abhijit Kundu, the apex court said that the welfare of a child is not to be measured merely in the terms of money or physical comfort, but the word “welfare” must be taken in its widest possible sense so that the tie of affection cannot be disregarded.

Procedure to obtain child custody:

The procedure for the custody starts with filling a petition by the parent who seeks custody. Mostly in the cases of child custody, the non-custodial parents seek the custody. The petition may take longer time, hence, application for interim or temporary custody also visitation rights can be filed by non- custodial parent.

Visitation rights are those rights which allows the non-custodial parent to meet the child in the time span of 1-4 months. Interim custody is that type of custody where a specific period is defined in which the child can be with the non-custodial parents and the child has to be retuned in the time specified.

Guardianship and Wards Act, 1890:

Section 8 of the said act enumerates persons entitled to apply for an order as to guardianship. Section 9 empowers the court having jurisdiction to entertain application for guardianship.

Procedure under Guardianship and Wards Act, 1890:

Section 10. form of application. – 10.

(1) If the application is not made by the Collector, it shall be by petition signed and verified in manner prescribed by the Code of Civil Procedure, 1882 (14 of 1882)1, for the signing and verification of a plaint, and stating, so far as can be ascertained, —

(a) the name, sex, religion, date of birth and ordinary residence of theminor;
(b) where the minor is a female, whether she is married and if so, the name and age of her husband;
(c) the nature, situation and approximate value of the property, if any, of the minor;
(d) the name and residence of the person having the custody or possession of the person or property of the minor;
(e) what near relations the minor has and where they reside;
(f) whether a guardian of the person or property or both, of the minor has been appointed by any person entitled or claiming to be entitled by the law to which the minor is subject to make such an appointment;
(g) whether an application has at any time been made to the Court or to any other Court with respect to the guardianship of the person or property or both, of the minor and if so, when, to what Court and with what result;
(h) whether the application is for the appointment or declaration of a guardian of the person of the minor, or of his property, or of both;
(i) where the application is to appoint a guardian, the qualifications of the proposed guardian;
(j) where the application is to declare a person to be a guardian, the grounds on which that person claims;
(k) the causes which have led to the making of the application; and
(l) such other particulars, if any, as may be prescribed or as the nature of the application renders it necessary to state.

Section 11. Procedure on admission of application:

(1) If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof and cause notice of the application and of the date fixed for the hearing—
(a) to be served in the manner directed in the Code of Civil Procedure, 1882 (14 of 1882)1 on—
(i) the parents of the minor if they are residing in 2[any State to which this Act extends];
(ii) the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor;
(iii) the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant, and
(iv) any other person to whom, in the opinion of the Court, spe­cial notice of the application should be given; and
(b) to be posted on some conspicuous part of the Court-house and of the residence of the minor, and otherwise published in such manner as the Court, subject to any rules made by the High Court under this Act, thinks fit.

Procedure under Hindu Marriage Act, 1955

Section 26 of the Hindu Marriage Act authorises court o pass interim orders in any proceeding under the act with respect to custody, maintenance, and education of minor children, in consonance with their wishes. The section also authorises court to revoke, suspend or vary such interim orders passed previously.

Types of custody:

The court allows the custody of a child in three forms:

Physical Custody
In this type of custody, the child has to stay under the guardianship of one parent with visitation rights to the another. This type custody gives the other parent a right to visit the child and interact with him/ her. It ensures that the affection of the other parent is not deprived.

Joint custody
In joint type of custody, the parents don’t have to stay together for the child, though it is best for the child. The child has a revolving custody. The custody of the child shifts from one parent to another after a specific period of time. The duration may vary from days to weeks to months. This type of custody benefits the child as child gets attention of both the parents and also the parents get the opportunity to be a part of their child’s life.

Legal custody:
In legal custody, irrespective of the fact that whether the child stays with the parent or the parent stays with the child, the authority to take the decision prevailing to the health and education of the child are endowed. The legal custody is usual given to both the parents but in cases where the divorce is messy it is giving to any one parent.


The decision as to who gets the opportunity to raise the child and take care of him/ her is answered by law in a very sensitive and thoughtful manner. The law keeps aside the privileges that the parent has and only focuses on the concept of ‘welfare of the child’. the decision depends upon the different personal laws and Guardianship and Wards Act,1890. The Guardianship and Wards Act, 1890 would prevail if personal law fails to fulfil the need.

Author :

Avantika Kharade, Maharashtra national law university, Aurangabad.