Indian law does not give automatic custody to the mother. A father can legally get child custody if he proves the “Welfare of Child” is safest with him.
NEW DELHI: In India, child custody is not decided just because someone is a father or a mother. The only rule followed by Indian courts is the principle of “Welfare of Child” or “best interest of the child”. This is the highest and final test. Society may assume that mothers always get custody, but Indian law never gives automatic preference to any gender.
A father has equal legal rights and can get custody if he proves that the child’s safety, growth, education, emotional health, and overall future are better protected with him.
This article explains how a father can legally get child custody, what courts actually see, and how fathers should plan their case in a lawful and child-centric manner.
Child custody issues mainly arise during divorce proceedings, and courts decide the matter based on best interest of the child. According to the principle “Welfare of Child”, if a father asks custody of his child, then he must demonstrate his ability to provide a stable, peaceful and nurturing environment to the child, and for this a father must understand the types of custody, related legal terminologies and effective strategies so that he can better position himself in custody battle.
Meaning and types of Child Custody
Child custody means the legal right and responsibility of a parent or guardian to take care of a minor child, the parent or guardian who gets the custody of minor child, have right to take decisions related to minor child’s upbringing, education, health, welfare etc.
As per Indian laws, the custody matters of the child are decided primarily on the principle of “Welfare of Child”, rights of the parents, whether mother or father is secondary, welfare of Child or Best interest of Child is Paramount.
Types of Child Custody in India:
To secure the child’s custody successfully, a father must ask for specific kind of custody from court, if he mentions simply ‘Custody’ in his petition, there’s an obvious chance that the petition would get rejected, as it sounds vouge. Hence, it’s important to keep the petition precise while seeking custody of the child.
There are types of Custody option available to a Father:
- Physical Custody: If a father seeks ‘Physical Custody’ from court that means, child will stay with him and he will be considered as custodial parent, mother might be grated visitation rights. To get Physical Custody of the child, father must assure stability, peaceful homely environment and wellbeing of child to the court.
- Legal Custody: By getting ‘Legal Custody’ parents get right to make important decisions related to education, travel, medical treatment etc. If a father gets Legal Custody, that means he would have the right make important decisions relate to the child even if the Physical Custody stays with mother.
- Joint/Shared Custody: Under joint custody, both the parents share their responsibilities for the child, which might include alternate residence of the child. By granting Joint Custody, court ensures structured co-parenting, so that both the parents be involved in raising their child.
- Visitation Rights: It can be considered as the last option for a father to stay connected with his child if he fails to get any of the above custody. Visitation Rights provides Legal Right to a Non-Custodial parent to meet, spend time with and maintain relationship with their child. It might include weekend visits, Holiday or vacation meeting and phone/video calls.
Courts can grant interim custody or visitation rights during the case and final custody later. Under section 26 of the Hindu Marriage Act, 1955, law specifically empowers interim/final orders regarding custody/maintenance/education of minor child in matrimonial proceedings.
Various Conditions under which a father can claim the Child Custody
To get the child’s custody in India a father is required to assure the court that he is able to fulfil “best interest and welfare of the child”, which is Paramount Condition under the laws of India, and Courts decide the custody based on facts and circumstances.
The conditions and situations under which a father can claim custody of his child:
- Welfare of the Child- This is the most important factor to decide the child’s custody. It includes physical, moral, educational, and emotional well-being, stability of home environment and ability to provide care, guidance and safety. If father proves that he would be able to provide better overall welfare, custody may be granted to him.
- Mother is Unfit of Incapable: If father proves any of the incapabilities of mother mentioned below, it becomes easier to get child’s custody for him:
- She is suffering from a serious mental illness
- She is Physically incapable of taking care of the child
- She is involved in substance abuse or criminal activity
- She displays neglect, cruelty, or immoral conduct affecting the child
- She has abandoned the child
These incapabilities of the mother make her case weaker and, in such situations, father is considered more fit parent to get custody of the child.
Case Ref.- (Gaurav Nagpal V. Sumedha Nagpal (2009))
- Child’s Age and Gender: In case the child is below 5 years, the custody usually granted to mother, however father can get the custody if he proves that the mother is unfit to provide better care or the child’s welfare is at risk with her.
If the child is older, then the courts consider educational continuity and emotional bonding with the father. Judge may interact privately with the child to know his/her preference and grants custody accordingly.
- Father has Better Financial Stability: If father proves that, he is capable to provide:
- Better Education
- Stable home environment
- Medical care
- Overall physical and emotional security, to the child, the court can order the custody rights in his favor, though the financial strength alone is not sufficient, it should meet other requirements as well.
- Mother got Remarried: The remarriage of the mother is not sufficient ground itself to grant Custody to a father, but the custody may shift to the father if:
- Child is uncomfortable or unsafe in new environment
- Step-father mistreats the child, or
- The new environment affects the emotional well-being of the child.
- Mother is Living an Immoral or Unsafe Life: A father can claim custody of the child if the mother is involved in:
- Some Criminal Activities which creates negative impact on child
- A Live-in Relationship which disturbs the child
- Exposure of unsafe individuals, where child feels unsafe.
- Mother doesn’t have a Stable Residence: If Mother relocates frequently due to transfer of her job or unstable residence, the education and routine of the child suffer, in that case also court may grant custody to the father as the stability is the key to get custody of the child.
Governing Legal Framework
Under Indian Laws, there’s no such specific provision which provides the Child custody to Father or to Mother only by default. However certain Acts and specific sections expressly provide father the right to claim Custody or Guardianship.
| Law/Statute | Section | Purpose |
| Hindu Minority and Guardianship Act 1956 | Section 6(a) | It declares the father as the Natural Guardian of a Hindu Minor Legitimate Child, if child is below 5 years, then mother gets the custody of child usually, but guardianship remains with father only |
| Hindu Minority and Guardianship Act 1956 | Section 13 | It mainly focuses on welfare of the child, under this section, any person is eligible to get the custody, if he/she proves that the child’s welfare is with him/her only |
| Guardians and Wards Act, 1890 | Section 7 | Court may appoint any person as a guardian of minor’s person or property under this section, which declares the removal of earlier guardian |
| Guardians and Wards Act, 1890 | Section 17 | Courts consider welfare of the child, including child’s age, sex, religion and character, capacity nearness of proposed guardian to the child |
| Guardians and Wards Act, 1890 | Section 25 | Under this section court returns the child’s custody to its guardian if the child is removed from the guardian’s custody. Father can apply for custody if child is removed from his lawful guardianship |
| Muslim Personal Law | Applied through courts | Father is the natural guardian (Wali) of minor children Custody (Hizanat) may shift to father after prescribed age (Boy- after the age of 7 years and Girls- after reaching the age of puberty) |
| Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) | Section 144 | Court may pass interim custody orders of minor child while deciding maintenance proceedings, which includes custody to father |
Case Laws to Encourage a Father to Claim for his Child’s Custody
Custody of a child is not about the right of Father or Mother, it is mainly focused on the right of a child, whose welfare is paramount, and its father’s responsibility to prove that the child’s welfare is with him only, here’s few case laws which every father must know if he is fighting for his child’s custody:
- Nil Rathan Kundu V. Abhijit Kundu (2008): In this case the term ‘welfare of Child’ was explained, it includes moral welfare, emotional welfare, educational welfare and psychological well-being, only financial capacity is not considerable, healthy environment is important and courts can deny custody if environment is unhealthy. It focused on child-centric justice and not on straightjacket formula.
- Gaurav Nagpal V. Sumedha Nagpal (2009): According to this judgment, even if the mother got custody of the child earlier, father can reclaim the custody later, as the custody orders are not final, it can be modified as per the demand of welfare, and child’s wish gets more importance with the age.
- Athar Hussain V. Syed Siraj Ahmed (2010): This is the most powerful case against parental alienation, torturing, and false fear created against father. In this case Supreme Court held that, a parent who alienate the child from other parent in unfit for custody, as poisoning the child’s mind is against the welfare.
- Roxann Sharma V. Arun Sharma (2015): In this case SC opposed to solely evaluating the parental rights of mother or father, as mother is not an automatic custodian, father and mother, both have equal rights and welfare of child overrides the tender age
It’s general perception that, if child is below 5 years, then the custody is granted to mother only, but this case broke that perception as the welfare of the child is paramount even in its tender age. - Vivek Singh V. Romani Singh (2017): This important judgement of Supreme Court promotes ‘Joint Custody’, as child needs love of both the parents, hence courts must promote shared parenting because denial of father’s access harms the child.
Common Mistakes a Father Should avoid while claiming child’s custody
Indian family courts do not decide custody on sympathy, anger, or gender narratives. They decide on conduct, consistency, and child-centric intent. A father should avoid making following mistakes, as it destroys the custody case silently:
- Asking Visitation Rights Only: If a father seeks visitation rights only, the courts presume it as, he is not ready to take his child’s responsibility neither considers himself a natural guardian, just wants to meet occasionally without showing any responsibility.
It leaves bad impression on court and court might limit the father’s role permanently and it becomes difficult to reclaim child’s custody in future. - Not Attending Court’s Hearing: It creates damaging impression on father and he loses the moral credibility, if he skips court’s hearing even once, Courts generally see it as a non-serious behavior of father towards his child and make assumption that child is not his priority, he is filing case to harass the mother only. It might result into adverse observation in order and court may reduce or deny the access to father and can reject interim custody as well.
- Badmouthing the Mother Excessively: It is common perception that badmouthing the other parent would strengthen their case, but it creates negative impact and there’s a high chance that he/she would poison the child’s mind. A father should not put excessive allegations on child’s mother as the child is biologically and emotionally linked to its mother and courts see it as personal revenge and hostility, not concern. It weakens the suitability of a father as custodian.
- Emotional Outburst in Court: Courts don’t see an emotional father as a fit custodian, crying uncontrollably, shouting or emotional speeches are considered as unnecessary drama, courts see it as emotional instability and lack of self-control and find it risky parenting environment. Being calm is the key because a calm father looks safer than an emotional one.
- No Child-Centric Planning: This is the common mistake most of the fathers make while claiming their child’s custody, they would talk about- how they have suffered the false cases, how they got harassed, how they got robbed by their wives, they would count all the injustice happened to them, but no vulnerability is going to help here as the case is about child’s custody and the welfare of child is the only thing needs to be discussed here hence, make your discussion focused on residence, schooling, medical care, daily routine and emotional well being of the child.
Conclusion
Fathers often lose custody due to avoidable mistakes. Asking only visitation rights sends a message that the father does not want responsibility. Skipping court hearings damages credibility and seriousness. Excessive bad-mouthing of the mother appears as revenge, not concern.
Emotional outbursts in court reflect instability. Most importantly, talking only about false cases, harassment, or personal suffering instead of focusing on the child’s routine, education, health, and emotional needs destroys the case quietly.
In India, child custody is never decided on gender or tradition. It is decided on conduct, capacity, and genuine care. A father who approaches the court with calmness, consistency, clear planning, and true concern for his child stands on strong legal ground.
Indian law does not see fathers as secondary parents. It recognises both parents equally and entrusts custody to the one who truly serves the child’s present and future welfare.