When parents separate, custody of the children is often the hardest question. In Mumbai, custody disputes are heard by the Family Court at Bandra, and whatever the parents’ religion, the court applies one overriding test: the welfare of the child. Neither parent has an absolute right. This guide explains how the court approaches custody and what each parent can ask for.
The laws that apply
| Law | Relevance |
|---|---|
| Guardians and Wards Act, 1890 | Applies to all communities. Section 17 makes the welfare of the minor the guiding consideration; Section 25 allows the court to order the return of a ward to the guardian’s custody. |
| Hindu Minority and Guardianship Act, 1956 | For Hindus, Buddhists, Jains and Sikhs. Section 6(a): custody of a child who has not completed five years shall ordinarily be with the mother. Section 13: welfare is paramount. |
| Hindu Marriage Act (Section 26) and Special Marriage Act (Section 38) | Allow custody orders, interim and final, within divorce or other matrimonial proceedings. |
| Muslim personal law | The mother has hizanat (care) of young children, traditionally till about seven for a boy and puberty for a girl under Hanafi law, while the father remains the natural guardian. Courts still decide on welfare. |
How the court decides
The Supreme Court has said many times, including in Gaurav Nagpal v. Sumedha Nagpal (2009), that the welfare of the child, not the rights of the parents, is the paramount consideration. Courts look at:
- the child’s age and who has been the primary caregiver;
- the emotional bond with each parent and with siblings;
- continuity of schooling, home and routine;
- each parent’s ability to give time, care and a stable environment;
- the child’s own preference, if the child is old enough to form an intelligent preference (Section 17(3) of the Guardians and Wards Act). Judges often speak to the child privately in chambers;
- any history of violence, neglect or substance abuse.
Money is relevant but not decisive. A parent who earns less is not denied custody on that ground alone, because the other parent can be ordered to pay child maintenance.
Children under five
For Hindu children, Section 6(a) of the 1956 Act provides that custody of a child under five shall ordinarily be with the mother. In Roxann Sharma v. Arun Sharma (2015) the Supreme Court held that the mother need not prove herself fit; it is for the father to show strong reasons why she should not have custody. Courts apply a similar approach to young children of other communities on welfare grounds.
Types of orders
- Interim custody: who keeps the child while the case is pending. It can be sought at the start of the case and is often decisive in practice.
- Physical custody: with whom the child lives.
- Joint custody or shared parenting: where parents can cooperate, courts increasingly divide time and decisions.
- Visitation: the non-custodial parent’s time with the child, which may include weekends, school holidays and video calls. In Yashita Sahu v. State of Rajasthan (2020) the Supreme Court recognised video contact as a form of visitation.
- Guardianship: the right to take decisions on education, health and property.
- Child maintenance: a separate claim from the spouse’s own maintenance.
Step by step
- Collect the child’s birth certificate, school records, medical records and proof of who handles daily care (fees paid, school pick-ups, doctor visits).
- Keep a short diary of the child’s routine and any incidents affecting the child.
- File a petition for custody, either within the divorce proceedings or separately under the Guardians and Wards Act, in the Family Court at Bandra.
- Apply for interim custody or interim visitation at the outset if needed.
- Attend counselling and mediation at the Family Court; many custody arrangements are settled there.
- If a child is taken away in breach of an order, or removed from the country, act immediately; urgent orders and, in some cases, a habeas corpus petition before the High Court are possible.
Frequently asked questions
Can a father get custody?
Yes. If the child’s welfare is better served with the father, the court will give him custody. The mother’s preference for young children is a rule of ordinary course, not an absolute one.
Can I take my child to live with my parents after separating?
Without a court order, both parents usually have equal standing, but moving a child suddenly, especially to another city, can count against you. Taking advice and, where needed, an interim order first is safer.
Can custody orders be changed?
Yes. Custody orders are never truly final; either parent can apply for a change if circumstances change.
Can the custodial parent take the child abroad?
Not if an order restrains it, and generally not without the other parent’s consent or the court’s permission where a custody case is pending.
See also: a wife’s rights in divorce in Mumbai, khula and Muslim divorce and divorce proceedings.
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This guide describes general law and procedure as understood in October 2026. It is not legal advice; every custody case turns on its facts, so take advice before acting.