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  • What is child custody?
  • What are the applicable laws on child custody?
  • What is the difference between child custody and guardianship?
  • What are the visitation rights?

Child Custody is used to refer to the legal guardianship of a minor child. Post the divorce proceedings, annulment of marriage, and so on the custody of a child becomes a ground for Court to adjudicate upon.

What Child Custody is and how it differs from Guardianship?


Custody refers to the right of a ‘parent’ of taking decisions for their child. Guardianship refers to a situation wherein a person is given legal authority over certain spheres of another person’s life.

Guardianship and child custody are not that extremely different from each other. Guardianship can be connected to a parent-child case as well as to something else. Even the adults and senescents are fit for having their own particular legal guardian as long as they are accurately unequipped for representing themselves as per the lawful expectations. While in custody or lawful child custody, it's for a parent-child or adult-minor sort of case. Since minors can't settle on right choices all alone, custody over them is generally given to the mother or father if there should be an occurrence of parent separation.

In essence, Guardianship is not an exclusive right of the parents and can be granted for any person(even adults) who seem to be incapable in the process of carrying out their life themselves as per the expectations of the law, whereas, Custody refers to a more parent-child/adult-minor basis. Also Guardianship has a limited scope w.r.t decision making provisions, whereas, Custody has superior authority.

What are the applicable laws to this topic?


Indian Divorce Act, 1869 – Sections 41 to 44

Guardianship and Wards Act, 1890

Hindu Minority and Guardianship Act, 1956

Hindi Marriage Act, 1956 – Section 26 of the Hindu Marriage Act authorizes courts to pass interim orders in any proceeding under the Act w.r.t custody, maintenance and education of minor children in consonance with their wishes.

The Special Marriage Act, 1954 – Section 38

The Parsi Marriage and Divorce Act – Section 49

Basic Legal Standing on issue of Custody Laws:


Hindu Minority and Guardianship Act, 1956 contains a provision which lays down that custody of a child upon the age of 5 years should ordinarily be with the mother.

As per Muslim policies, the custody of a child is given to the mother, this right is referred to as the right of ‘Hizanat’, but it is not of an absolute nature, it is made keeping the interests of the child as a priority. Father can enjoy the custody if the provisions of law find mother to not be suitable for the child’s custody.

Son’s custody is with mother till- as per Hanafis till age of 7 years, as per Shias till he is weaned, as per Malikis till the son attains puberty

Daughter’s custody is with mother - as per Hanafis till the age of puberty, as per Shaafis & Hanabalis till age of marriage, as per Itna Ashari Law till age of 7

Christians are subjected to the secular Indian Divorce Act, 1869 for questions related to the ‘Child Custody’.

Parsi’s are subjected to Section 49 of the Parsi Marriage and Divorce Act, 1936 for issues pertaining to Child Custody which speaks about the Court’s power to pass orders w.r.t the custody, maintenance, education, etc. of minors.

Some interesting facts and judgements w.r.t Guardianship and Custody:


The term ‘custody’ is not defined in any Indian family law.

18 is considered as the age of ‘majority’ however, where, a guardian has been appointed by the Court for a minor or for his property, then, he is considered to be a major on completion of 21 years of age.

Shilpa Agarwal v. Aviral Mittal : Dominant criteria for appointing the guardian of the child is the principle of welfare of the child, best interest of the child.

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