Custody means giving the rights of raising a minor child to a parent. Under normal circumstances, both parents naturally have joint custody of their child. If the parents are getting separated or divorced, since they won’t be living together, any parent can ask for sole physical custody of the child, i.e. only one parent will have the custody of the child.
The laws governing custody of Hindu children:
Along with the above, custody is mainly a matter for courts to decide. Courts decide custody based on case to case, considering all the facts and circumstances of the case.
Physical custody means the custody over the day-to-day raising of the child, and the right to make decisions for the day-to-day activities of the child. For example- which clothes to buy, which hobby classes to put the child in, whether to send the child for a school picnic, etc.
Legal custody means the right to take major decisions about this child’s life. For example- which school to put the child in, whether to go for a medical operation, etc.
Usually in India, courts give one parent the physical custody, so that the child can lead a stable life by living with one parent. However, both parents have legal custody- i.e. both parents have the right to take major decisions, and should take these decisions jointly. Only in cases where the court feels one parent is unfit for legal custody (eg- the parent has a psychological problem or is an alcoholic/gambler), then the court will give sole legal custody to only one parent.
If the child is below 5 years, the custody will naturally go to the mother (Hindu Minority and Guardianship Act). Only if the court feels that the mother is unfit to take care of the child, the custody will go to the father or another person.
If the child is above 5 years, the custody can technically go to either parent- mother or father. Usually, courts grant custody to the mother, because she is considered a more natural caregiver. However, depending on the situation, courts can even grant custody to the father. For factors considered by courts while granting custody, see below.
Courts will decide the custody on a case to case basis, looking at the overall circumstances of the parties. The two main factors that the courts look at are:
Remember- Courts are always pro-child. They will do what is best for the child and the child’s interest is paramount. Courts are also the ultimate guardian of a child and it is their duty to decide in the child’s best interest.
No, it is not a rule that the mother will always get custody. Usually, since the mother is considered a natural caregiver, the custody is given to the mother.
When does the mother not get custody?: The courts will not give custody to the mother if they think she will not be able to take care of the child. For example- if the mother is an alcoholic, or if she has a psychological problem.
Practical tip: If both parents are fighting strongly for the child’s custody, usually the opposite side will make allegations like the “mother has an affair” or “mother has a psychological problem” to show that the mother is unfit. Don’t worry, courts will decipher the truth and will not fall for mere allegations. You should make sure you are on your best conduct so that the opposite side cannot use anything against you.
Yes. The custody of a child need not always be given to a parent. The wishes and welfare of the child will also be given importance.
For instance, if the child has grown up with the grandparents, and wants to stay with them, the court may grant custody to the grandparents if the court feels this will be good for the child. Or if the court feels neither of the parents is fit enough to take care of the child, the court may grant custody to a third party, which is usually grandparents or a close relative.
As the welfare of the child is going to be the court’s primary consideration, a parent’s chances of getting custody will improve if the court feels that it will be beneficial to the welfare of the child if they are granted custody.
A few of the factors the court may consider for the welfare of the child are:
You can ask for custody of your child at any time during the divorce or separation proceedings. You will need to ask for it as a part of your divorce/separation petition, either in the petition itself, or by filing a separate application (if you haven’t asked for it in the petition).
In the same court where your divorce/separation case is going on. You should file for custody as a part of the same case.
Parents have custody of the child only until the child turns 18 years old. After that, the child is considered old enough to live wherever the child wants, and the court will not decide on behalf of the child.
Interim custody is temporary custody which is given when the divorce/separation case is ongoing. Usually cases in India take at least 2-3 years to be fully closed. During this period, the court will grant custody of the child to any of the parents. Once the court gives the final decision, the court will give final orders for permanent custody.
The same factors as while giving permanent custody (see above).
Yes, interim custody and permanent custody can go to different parents. Usually, interim custody and permanent custody is given to the same parent. However, as explained above, courts will consider all factors and decide based on what is best for the child. If court grants interim custody of the child to one parent, and later (by the time the case is finally close) the circumstances change, and the court feels that the other parent will be better, the court may change the custody.
Visitation rights are the rights of the non-custodial parent (i.e. the parent who does not have custody) to meet the child.
Courts will give visitation rights based on the facts and circumstances on a case to case basis. There is no fixed rule for this. For example, if both parents are living in the same city, the court may grant the non-custodial parent the right to visit every weekend. If parents are in different cities, the court may grant the non-custodial parent right to take the child to his/her city in the holidays.
Practical tip: The child’s welfare is of paramount importance. The court will grant visitation rights such that the child’s schedule or schooling is not disturbed. Usually, courts give visitation rights during holidays and important occasions- like weekends, summer holidays, festivals, birthdays, etc.
The courts will look at each case uniquely and consider the facts and circumstances of each case as a whole while deciding visitation rights. A few factors the court may look at are:
As a rule, courts will not want to separate the child from any parent. Therefore, even if one parent has the custody, the other parent will have visitation rights. The only time when the court will not give visitation rights to the non-custodial parent is if the court thinks this will harm the child. For example- the non-custodial parent is very violent or abusive, or has psychological issues. Even this should be such that, due to these issues, the child may get affected. Therefore, the only way you can stop your ex-husband from having visitation rights is if the court feels this will harm the child.
But if you don’t feel comfortable leaving the child alone with your ex-husband, you can always ask for visitation rights in your house, or in a nearby park, or in a grandparent’s house.
An order for custody is not permanent for life. It can be changed at any time for the welfare of the child. The court may change the custody if the circumstances of the parent change and the court feels it is needed for the child’s welfare. For example- If the mother is granted custody, and she has to move to a remote village from a city, the child’s education may get affected. So the court may change the custody of the child.
Who can ask for a change of custody- Anyone who is genuinely concerned about the child’s welfare, like the child’s other parent(who was not given custody), the grandparents, close relatives, etc.
No, you will not lose your custody simply because you remarry. If you remarry, you may be able to provide a more stable and comfortable environment for your child, which is better for the child. The only reason you may lose custody is if the court feels that being with you is not good for the child’s welfare.
If you have physical custody of the child(explained above), you can make decisions about the day-to-day activities of the child, like which hobby class or tuition should the child go to. For the bigger decisions about the child, like which school should the child go to, usually, both parents will have legal custody (explained above), i.e. the right to make major decisions for the child. Therefore, when it comes to major decisions, you will have to make them jointly with the other parent. But for smaller day-to-day decisions, you don’t need to consult the other parent.
You can ask the court for granting visitation rights such that your ex-husband meets your child in a safe place- like your house, or a grand parent’s house. You can also ask that your ex-husband can meet your child only in your presence. The court will always decide what is best for the child.
Generally, courts are always in favour of the child maintaining good relations with both parents. Courts want to ensure that just because the parents have problems with each other, this should not affect the child’s right to both parents. A child’s reluctance by itself will not be enough to stop visitation rights. This is because, generally the parent who has custody tends to influence the thoughts of the child and courts are well aware of this. Unless the court feels that the visitation rights will harm the child, the court will not stop the visitation rights.
You can always apply to the court for a change in the custody order. As explained above, no custody order is permanent. The court can change custody at any time depending on what is best for the child. If the court feels that the present custody order (i.e. giving custody to your ex-husband) is not good for the child, the court may change the order and give you custody.
Practical tip: Courts want to bring stability in the child’s life and make sure the child’s education is not disturbed. Therefore, courts will not keep changing the custody order based on small reasons. Only if the reason is so strong that the present custody order seems harmful and the only way out is to change the custody order, only then courts will prefer to change custody orders.
Which court to apply for a change in custody- The same court which granted the previous custody order (usually the family court)
How to apply for a change in custody- File an application for change of custody under Section 26, Hindu Marriage Act.Usually, no. As explained above, even if one parent has physical custody, both parents have joint legal custody (i.e. right to make big decisions for the child). Since school is considered an important decision, it will fall under legal custody and your ex-husband cannot make this decision without consulting you.
Both parents are supposed to be equally responsible for the child’s expenses, irrespective of who has physical custody. If only the father is earning and the mother has no income, then usually the father is asked to pay maintenance for the child (if the child is in the mother’s physical custody). If both mother and father are earning, both are expected to contribute, proportionate to their income (i.e. If both earn the same, both will contribute equally, if one parent earns more, this parent will contribute more).
In India, maintenance of child and visitation rights are treated separately. You cannot deny your ex-husband visitation rights based on his financial contribution. You can file a contempt case in court stating that he is not obeying court orders asking him to pay maintenance for the child.
No. Unless there is evidence that the custodial parent is neglecting the child or depriving the child of basic necessities or physical comforts, the other parent cannot get possession of the child on the sole basis of a better financial position.
A Hindu divorcee father, as well as a Hindu divorcee earning mother, are obliged to contribute towards the maintenance of their children. Even if your ex-husband is economically better off than you, if you are earning, you will need to contribute towards your child’s expenses, in proportion to both your incomes.
The court will consider all factors like the financial position and status of the parties, the necessities of the child (like school fees, expenses for day-to-day activities, food, accommodation, special activities like school trips or travel, etc.) and then decide the quantum of expenses for the child. Therefore, this will differ from case to case, depending on all the above factors. The court will also consider what is reasonable and justified for the financial status of the parents. For example- if the parents are economically humble, the court will not consider foreign trips as necessary expenses for the child.
Please note: This information has been made available to you for your benefit on an ‘as is’ basis, and is only for your information. It does not constitute legal advice and cannot substitute professional legal advice. Our disclaimer policy can be viewed here ( disclaimer policy)
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