Caveat India

Child Custody after Divorce in India-Expert Advice by Caveat India

Child Custody after Divorce depends on facts and circumstances of each individual case. It has always been observed in divorce cases it is the Child who suffers the most , because children need love and affection of both  parents . That is why it is important to settle such issues  with care and affection firstly to try and work out the marriage and in cases if it is totally unworkable then find a solution for a settlemtn wherein children are least affected .There are however various types of custody such as

  • Joint Custody
  • Legal Custody
  • Split Custody
  • Physical Custody

Child Custody after Divorce depends on whether the Custody was  Mutually agreed upon at the time of filing the Petition for Mutual Consent Divorce or was it filed after filing for custody in the Court of competent Jurisdiction.

Child Custody after Divorce  in case of  Divorce By Mutual Consent

In such cases when a Divorce Petition is filed in Court Mutually , is it also imperative that the custody of child is mentioned as to who will have sole custody and who will have visitation rights . In such cases it is Mutually agreed and it depends on the parties on what was decided and the Court seldom interferes on such arrangements as it is  agreed Mutually

Child Custody after Divorce in Contested Cases

In case of Contested Divorce  it depends on the facts of the case and the welfare of the child which is of paramount importance while deciding the custody rights. It is not necessary that  always the mother will be granted sole custody , the court will determine with whom the child will remain safe and secure both physically and financially secure. For Hindus which includes sikhs, Jains etc   contested divorce cases are filed under Section 13 of the  Hindu Marriage Act 1955 and for Christians under Section 10 of the Divorce Act, 1869

How is grant of Child Custody Determined in Contested Divorce Cases?

  • Age of Child is an important factor

When children are less than 7 years old especially daughters it is usually the case that the Sole Custody is granted to the Mother

  • Behaviour of Parents and relationship

The Court oftens calls for the children to be brought to the court and even questions are asked to check who the child wants to live with , however in such cases it is also possible that the child out of fear is tutored and unable to speak the truth,  but the Court has its ways of finding the court and with a few sessions it may be convinced.

  • Allegations of  Parents in Divorce Cases

The Court also considers the  factors that  has led to the  dispute between the parents of the child and finally will decide only after considering  the welfare of the child which  has been always the first criteria in all the Judgments of all courts. One such judgment is of  Gaurav Nagpal vs Sumedha Nagpal on 19 November, 2008 which is considered a landmark judgment on Custody rights.

Visitation Rights in Child Custody Cases

As discussed in case of Mutual Consent Divorce the Visitation Rights are decided Mutually by the parents themselves . In case of contested divorce  the Child custody will depends on various factors which include tender age of  the child , behavior of parents and finally determined by court keeping in view the welfare of the child.


Kindly feel free to call at 9873628941 for any information on Child Custody Matters. We will help you any information that may be required and for further legal procedures in Court. You may also click here  to fill in your details and we will get back to you .


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