Divorce -Who will get the custody

Dear Client,
The first step in seeking custody or visitation of a child is to file a petition in the family court where the child resides. The petition can be filed by either parent, grandparents, or any other person who has an interest in the child's welfare. Even if one parent has custody, the other parent will have visitation rights. Under Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the custody of a child below 5 years of age is given to the mother. Fathers can get sole custody of their children. To do so, first and foremost he must establish the unfitness of the mother before the Court seeking the custody of the child. The court must also feel that the father meets the "best interest standard" and the well-being of the child. In addition, there are aspects of a custody case where fathers may have an additional burden to prove that mothers do not. These include paternity, the primary caretaker role, and home environment quality. Only in case, if the court feels that the mother is unfit to take care of the child, the custody will go to the father. It is always recommended to hire an expert divorce lawyer to navigate the issue of child custody or visitation rights in the right way.

Dear client,

In custody matters, the courts' primary factor is the child's best interests. Since the child is only 6 months old, courts generally prioritize the mother's role in the early stages of the child's life due to her potential to provide emotional and physical care, especially if breastfeeding is involved.
While a mother's earning status is a factor, it's not the sole determinant.If the mother is not currently earning, that may not automatically disqualify her from custody, but the court might assess her financial stability, living conditions, and overall ability to care for the child. The father may also be considered for custody, especially if the mother is unable to provide a suitable environment for the child.
In some cases, the court might award joint custody, where the child spends time with both parents, or in other situations, sole custody may be granted to one parent, often with visitation rights for the other parent.
Each case is unique, and the court will make its decision based on a thorough assessment of the circumstances. If there's a significant concern about the mother's ability to care for the child, the father or other family members might be given custody or shared custody.


In India, child custody laws are governed by various personal laws depending on the religion of the parents, as well as the Guardians and Wards Act, 1890, which applies to all citizens.

Custody Laws Based on Religion
1. Hindu Law (Hindu Minority and Guardianship Act, 1956 & Guardians and Wards Act, 1890)
Mother’s Preference for Young Children: Courts usually grant custody of a child below 5 years to the mother unless she is proven unfit.
Father as Natural Guardian: The father is considered the natural guardian, but custody depends on the child’s best interests.
Welfare of Child is Supreme: The financial condition of the mother alone is not a deciding factor; her ability to provide love and care is more important.
2. Muslim Law
Mother’s Right of Custody (Hizanat): The mother has custody of a boy until 7 years and a girl until puberty (around 9-12 years).
Father’s Role: The father remains the legal guardian and has a duty to provide financial support.
Welfare of Child Considered: The court can override religious rules if the mother is more suitable for custody.
3. Christian Law (Indian Divorce Act, 1869)
Mother's Custody Rights: Courts prefer to grant custody to the mother if the child is very young.
Father’s Responsibility: The father has a duty to provide maintenance, even if the mother gets custody.
Court’s Discretion: The child's welfare is the top priority in custody decisions.
4. Parsi Law
Follows the Guardians and Wards Act, 1890, which gives courts discretion to decide based on the child's best interests.

Types of Custody in India
Physical Custody: The child lives with one parent, and the other gets visitation rights.
Joint Custody: The child spends time with both parents at different intervals.
Sole Custody: If one parent is deemed unfit, the other parent gets complete custody.
Third-Party Custody: If both parents are unfit, custody may be granted to a relative or guardian.


Consult an advocate for a better understanding of your situation.