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VOL. 11, ISSUE 1 (2025)
Child custody laws in India: Balancing welfare and parental rights
Authors
Ish Kumar
Abstract
This paper explores child custody laws in India, focusing on the
delicate balance between safeguarding the welfare of children and upholding the
rights of both parents. Child custody in India is governed by a combination of
a secular statute, the Guardians and Wards Act of 1890, and multiple
personal laws applicable to various religious communities. The central
principle guiding custody decisions remains the “best interests of the child,”
which prioritises a child’s physical, emotional and psychological welfare above
all else. Despite this ideal, the practical application is often complicated by
legal orders, gender biases, and enforcement challenges, leading to
inconsistent custody outcomes. The paper begins with a clear definition of
child custody, outlining its various types, including physical, legal, sole and
joint custody, describing how these modes operate in the Indian context. It
further examines the respective rights of custodial mothers and fathers,
highlighting legal provisions and landmark judicial interpretations that define
parental authority and responsibilities. Notably, the paper discusses
complexities like a father’s right to custody in cases where his name is absent
from the birth certificate and evolving judicial acknowledgement of both
parents’ roles in a child’s upbringing. An in-depth review of the legislative
framework covers critical laws like the Guardians and Wards Act, Hindu
Minority and Guardianship Act, Hindu Marriage Act, as well as Islamic,
Christian, and Parsi personal laws governing custody. The paper
describes how these statutes interact, underscoring the primacy of child
welfare while revealing disparities that arise from differing religious provisions.
A comparative analysis with laws from countries such as the United States,
United Kingdom, Canada and Australia reveals progressive practices emphasising
joint custody, shared parental responsibility and systematic inclusion of
children’s preferences. This comparison offers valuable lessons for India,
pointing to the benefits of uniform custody standards, enforcement mechanisms
and mediation practices. The paper concludes by acknowledging progress in
Indian custody jurisprudence, especially through recent Supreme Court rulings
that advance child welfare principles. However, persistent challenges like
enforcement gaps, prolonged litigation and gender biases hinder the full
realisation of balanced custody rights. Finally, it offers recommendations, including
legislating joint custody, harmonising laws, strengthening enforcement,
promoting mediation, and fostering public education on parental roles, all
aimed at ensuring custody laws better serve the best interests of children and
uphold parental rights fairly. This holistic exploration contributes to
understanding how Indian child custody laws can evolve to protect children’s
welfare while respecting the indispensable role of both parents.
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Pages:133-138
How to cite this article:
Ish Kumar "Child custody laws in India: Balancing welfare and parental rights". International Journal of Law, Vol 11, Issue 1, 2025, Pages 133-138
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