One of the biggest battles in a marital separation is that of custody for children. In most of the cases, both parents are keen to have their children live with them. While it may seem unjust to a parent that they don`t have sole custody, or that, they have to take full responsibility of the child – financial or personal, but the court, since enjoying broad powers and a high level of discretion in deciding the custody of children, will only take into account the welfare of the child and certain facts and circumstances like age, gender and wishes of the child when making a decision about child custody. One must not underestimate the role that both parents have in raising children, educating them and preparing them for the life ahead. The bias that a spouse might have for another must be proven through evidence in court if they want to limit the respondent`s rights for custody or visitation. The governing act in this case is Section 13 of the Hindu Minority and Guardianship Act, 1956. Based on the religious affiliation of the couple or their children, other laws may be taken into consideration.

Section 26 of The Hindu Marriage Act, 1955, outlines that a parent who has the custody of the child is required to take care of financial, emotional and educational needs of the child rather than the non-custodial parent who has been given the visiting rights. A very important role in deciding custody matters is the intentions and the capabilities of the parents. If you are filing for custodial rights, you must be able to clearly demonstrate your intentions and abilities to take care of your children. Remember- the court is worried about your child’s welfare, and not really your desires. Your intention to take good care of the child, will go a long way in proving your worth in ensuring your child’s welfare.


In reality, any child requires the love and companionship of both parents for an holistic upbringing and an all-round personality. When parents are in conflict with each other and do not want to live together anymore, it impacts children at various levels. While separation becomes inevitable in many cases, the court ensures that unless it is harmful for the children, they must have easy access in the form of custody and visitation rights, to both parents.

Interim Custody

A question often arises- who has the custody of the child while the litigation is in process?

During the proceedings of divorce and custody cases, the court may order an interim measure to any one parent as it may deem right for the child. This is a make-shift arrangement, and the court will only provide a final decision once all parameters of the case have been reviewed.

Choice of Religion

An emerging issue these days is about the choice of religion that a child in custody will make. If both parents are following different religions, it presents a dilemma as to which religion should the child follow. It is important to note that the personal law cannot be used to govern a minor’s life while in custody. Parents must keep the welfare of the child of paramount importance in their decision-making process.


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