Child custody in India

Under Hindu law the father and the mother are both natural guardians, and the Supreme Court has held that the mother is an equal natural guardian. Under Muslim law the father is the guardian, and the mother has the right of care (hizanat) of young children.

For a child born outside marriage, the mother is generally the natural guardian under Hindu law. The position of an unmarried father depends on the court.

The unmarried father, in one line: Depends on the parents' religion or personal law.

Hindu law says a child under five should ordinarily be with the mother, and courts decide custody by the child's welfare. Under Muslim law the mother has the care of a young boy until about seven and of a girl until puberty, though courts also apply the child's welfare. Christians and Parsis follow the Guardians and Wards Act, which is welfare based.

The court may ask a child who is old enough to form an intelligent preference.

A parent cannot generally take the child abroad against a court order. India is not a party to the Hague Child Abduction Convention, so there is no treaty route to have a child returned from India.

India is not in force under the 1980 Hague Child Abduction Convention, so there is no treaty route to ask for a child to be returned. Local advice is essential.

• Goa has a civil code of its own, and the rules for each religious community differ.

India belongs to the Common law family. Family law grows out of the legal tradition, so it helps to know how the system works.

Read the India legal-system profile in the Legal Families Atlas →
Who owns what in a marriage in India? →

• India Code: central Acts, including the Guardians and Wards Act