Questions Legal

In the case of divorce, who will get the child in India?


Akash Mehta

I am a believer

As per the 2019 statistics, 1 among every 100 marriages is getting divorced in India. This might be because of numerous reasons. Whatever the reasons are, this is mostly affected by the children who are getting within the fight between both parents. Children are not mentally strong enough to accept the reality of the world. That is why the Indian government had made specific laws protecting the children from unwanted stress caused by parents’ separation.


The court verifies that ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents’. So it is the sole interest of the child that can resolve who gets the kid. 

Under all the cases, only 5% ended up with the father getting custody of the child. Because usually, it is the mother that has more claim over a child rather than a father. Some secular, as well as Hindu laws regarding child custody in India, are;

  • The mother gets the legal custody of the child under age 5.

  • If the child is older than 9, his choice is considered.

  • Father gets custody of older boys, and the mother gets custody of older girls. Still, it is not compulsory to implement this law without the choice of the child.

  • A mother who is ill-treating and not taking care of the child can’t have custody of the child.

Under Muslim Law,

Only the mother has the claim over the child after divorce until or unless she is charge guilty under any circumstances. A father can have custody only in the absence of a mother.

Under Christian Law,

If divorce is necessary, unwanted fights cannot be the way to settle issues of child custody. Custody of a child only suggests to whom the child will physically stay with. Both parents will be natural guardians.

It is 1890, the Guardian and Wards Act that gives the court power to decide the custody of a child after the parent's divorce. The child can be given three kinds of custody,

  1. Sole custody - Only one parent gets the legal and caretaking custody of the child

  2. Joint custody - Both can share the legal custody of the child, but only one can achieve caretaking.

  3. Third-party custody - Neither of the parents is given custody. Rather a third person is authorized to take custody of the child.


Before deciding the custody of a child, the court will consider certain factors that will hold a valid hand in the final decree.

  • The welfare of the child is given priority over everything else

  • The child is not the inheritor of the property considering divorce or maintenance

  • The financial status of the custodian is considered

  • The behavior or approach of parents

  • Only the court has the authority to decide the matters regarding child

  • Assurance of the child's mental and physical wellness


Even if only one parent or both of them are taking custody of the child, it is the duty of both to provide the kid with expenses like different stages of education, health, and other maintenance costs. Parents can pay this amount as one time or staggered payment depending upon their income.

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