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Child custody law in Delhi is governed mainly by the Guardians and Wards Act, 1890 and, for Hindus, the Hindu Minority and Guardianship Act, 1956. Under both laws, the welfare of the child is the paramount consideration. No parent has an automatic right to custody. The family court decides what is best for the child.
This guide explains the laws, types of custody, how Delhi family courts decide, the process and documents.
Key takeaways
- The welfare of the child overrides the rights of either parent (Section 17 GWA, Section 13 HMGA).
- Custody of a child under five is ordinarily with the mother (Section 6(a) HMGA), but this is not absolute.
- Courts grant physical, legal, joint custody and visitation, including video calls.
- File in the family court where the child ordinarily resides (Section 9 GWA).
- Older children are usually heard by the judge, often in chambers.
In this guide
Child custody law in Delhi: the statutes that apply
| Law | Applies to | Key provision |
|---|---|---|
| Guardians and Wards Act, 1890 | All religions | S. 7 (guardian order), S. 9 (jurisdiction), S. 17 (welfare), S. 25 (return of ward) |
| Hindu Minority and Guardianship Act, 1956 | Hindus, Sikhs, Jains, Buddhists | S. 6 (natural guardian), S. 13 (welfare paramount) |
| Hindu Marriage Act, 1955 | In divorce cases | S. 26 (custody in matrimonial proceedings) |
| Special Marriage Act, 1954 | Inter-faith / civil marriages | S. 38 (custody of children) |
| Muslim personal law | Muslims | Hizanat: mother usually preferred for young children; GWA still applies |
| Family Courts Act, 1984 | All | Family courts hear custody cases; appeal to High Court |
In Gita Hariharan v. Reserve Bank of India (1999), the Supreme Court held that the mother can act as natural guardian when the father is absent or not taking care of the child. Guardianship and custody are different: guardianship is legal authority; custody is day-to-day care.
Types of custody
| Type | What it means |
|---|---|
| Physical custody | Child lives with one parent |
| Legal custody | Right to take decisions on schooling, health and religion |
| Joint custody | Child spends agreed time with both parents; decisions are shared |
| Visitation | Non-custodial parent meets the child on fixed days, holidays and by video call |
| Interim custody | Temporary arrangement while the case is pending |
In Yashita Sahu v. State of Rajasthan (2020), the Supreme Court said a child has a right to the love of both parents and approved video-call contact with the non-custodial parent.
How Delhi family courts decide custody
- Age and gender of the child, and who has been the primary caregiver.
- The child’s own preference, if old enough to form an intelligent view.
- Education, continuity of school and the child’s routine.
- Each parent’s health, conduct, working hours and home environment.
- Financial capacity, though money alone does not decide custody.
- Willingness of each parent to allow the child contact with the other.
In Nil Ratan Kundu v. Abhijit Kundu (2008), the Supreme Court held that custody cases are decided on the child’s welfare, not on legal technicalities. Delhi practice note: judges at the Rohini, Tis Hazari and Saket family courts often interact with the child alone in chambers or a child-friendly room before passing even interim orders.
Step-by-step custody procedure in Delhi
- Try mediation or counselling. Most Delhi family courts refer parents to counsellors or the mediation centre first.
- File the petition under Sections 7 and 25 GWA (or Section 26 HMA within a divorce case) in the family court where the child ordinarily resides.
- Apply for interim custody or visitation if urgent, with reasons.
- Respondent files a reply; the court may call for a counsellor’s or social investigation report.
- Evidence and interaction with the child; both sides lead evidence.
- Final order on custody, visitation and child support. Appeal lies to the Delhi High Court under Section 19 of the Family Courts Act within 30 days.
If a parent removes the child unlawfully, a habeas corpus petition before the High Court may be possible in urgent cases. The Supreme Court discussed when this remedy fits in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019).
Visitation rights and child support
Under child custody law in Delhi, the parent who does not get custody is almost always given visitation. A typical Delhi family court order fixes weekend meetings (often alternate Saturdays or Sundays), half of the summer and winter vacations, birthdays and festivals by turn, and regular video calls on fixed days.
Child support is separate from custody. The custodial parent can claim maintenance for the child under Section 144 BNSS (old Section 125 CrPC), Section 26 HMA or Section 20 of the Hindu Adoptions and Maintenance Act, 1956. Courts look at school fees, medical needs and the earning parent’s income.
Rights of grandparents and other relatives
Grandparents or other relatives can apply for guardianship or custody under the Guardians and Wards Act if both parents are unable to care for the child, or after a parent’s death. They can also seek limited visitation where it serves the child’s welfare.
Custody when a parent lives abroad
If one parent plans to move abroad with the child, the court looks closely at the child’s welfare and the other parent’s contact. Delhi courts may ask for undertakings to return the child, mirror orders in the foreign country, or passport deposits before allowing travel.
Documents required for a custody case
| Document | Purpose |
|---|---|
| Child’s birth certificate | Proves age and parentage |
| Marriage certificate or proof | Shows the relationship |
| School records and fee receipts | Shows who manages schooling |
| Medical records of the child | Shows health needs and caregiver |
| Income proof of the parent | Shows ability to support the child |
| Address proof and photos of the home | Shows living conditions and jurisdiction |
| Messages or records of the other parent’s conduct | Only if relevant to the child’s welfare |
How long a custody case takes
| Stage | Typical time (varies) |
|---|---|
| Interim custody / visitation order | Weeks to a few months |
| Mediation | 1 to 3 months |
| Final decision (contested) | 1 to 3 years |
| Custody by consent (in mutual divorce) | Decided with the divorce decree |
Common mistakes parents make
- Stopping the other parent from meeting the child without a court order.
- Coaching the child before the court interaction. Judges notice it.
- Changing the child’s school or city during the case without permission.
- Mixing custody with money disputes in the same arguments.
- Posting about the case or the child on social media.
How a child custody lawyer in Delhi helps
A child custody lawyer in Delhi chooses the right law and court, seeks interim visitation early, and builds the case around the child’s welfare rather than blame. Where parents agree, counsel drafts a parenting plan that can be recorded in the decree.
If custody is part of a separation, see our guides on mutual divorce documents in Delhi and the divorce process in Delhi. For advice specific to your situation, you may consult a qualified advocate.
Frequently asked questions
Who gets child custody after divorce in Delhi?
Neither parent gets custody automatically. The Delhi family court decides based on the child’s welfare, looking at age, primary caregiver, schooling, each parent’s situation and the child’s wishes. Young children often stay with the mother, while the father usually gets regular visitation, holidays and video calls.
Does the mother always get custody of a child under five?
Section 6(a) of the Hindu Minority and Guardianship Act says custody of a child under five shall ordinarily be with the mother. Ordinarily is not always. If the mother is unfit or the child’s welfare points elsewhere, the court can give custody to the father or another relative.
Is joint custody allowed in India?
Yes. Indian law does not use the term formally, but Delhi family courts regularly pass shared parenting orders where the child spends agreed time with both parents and major decisions are shared. Joint custody works best when parents live close by and can communicate without conflict.
At what age can a child choose which parent to live with?
There is no fixed age. Under Section 17(3) of the Guardians and Wards Act, the court considers the preference of a child old enough to form an intelligent preference. In practice, Delhi judges give weight to the views of children around nine years or older, but welfare still decides.
Can a father get custody of a child in Delhi?
Yes. Fathers get custody when it serves the child’s welfare, for example if the father has been the main caregiver, the child is older and prefers him, or the mother is unable to care for the child. Fathers who are not given custody usually receive visitation and holiday time.
Where should a custody case be filed in Delhi?
Under Section 9 of the Guardians and Wards Act, file in the family court of the district where the child ordinarily resides. Delhi has family courts at Rohini, Tis Hazari, Karkardooma, Saket, Dwarka, Patiala House and Rouse Avenue. If a divorce case is pending, custody can be sought there under Section 26 HMA.
This guide was prepared with reference to the Guardians and Wards Act, 1890, the Hindu Minority and Guardianship Act, 1956, Section 26 of the Hindu Marriage Act, 1955 and the Family Courts Act, 1984 (available on India Code), and the Supreme Court rulings cited above.
Related guides and services
- Child Custody Lawyer in Delhi
- Divorce Lawyer in Delhi
- Mutual Divorce Lawyer in Delhi
- Mutual divorce documents in Delhi
- Divorce process in Delhi
- Maintenance under Section 144 BNSS
Written and reviewed by Advocate Shubham Mehta
Advocate, Bar Council of Delhi (Enrl. No. D/6398/2021), and head of SRLM Law Associates. He practises before Rohini Courts, other Delhi District Courts, Family Courts, consumer commissions and the Delhi High Court. More about the firm
Speak to SRLM Law Associates
For advice specific to your situation, you may consult a qualified advocate. Advocate Shubham Mehta and the SRLM Law Associates team can be reached at +91 92052 74745 or [email protected]. Chamber: 1310, Lawyer’s Chamber Block, Rohini Courts, Delhi – 110085. Office: 250, Kayan Vihar, Delhi – 110033. Open daily, 9 am – 9 pm. See our Google reviews and directions.
This article is for general information only and is not legal advice.
