Can a Father Get Custody of a Child in India?

Father custody rights in India: the short answer

A father in India has a strong legal position on paper. Under Section 6(a) of the Hindu Minority and Guardianship Act 1956, the father is the natural guardian of a Hindu minor boy or unmarried girl, and after him the mother. The Supreme Court in Gita Hariharan v. Reserve Bank of India (1999) read "after" to mean "in the absence of", so the mother is also a natural guardian when the father is not looking after the child. Guardianship, though, is about legal authority. Custody is about who the child lives with, and that is decided on a different test.

The test is welfare. Section 13 of the same Act says that in appointing or declaring a guardian, the welfare of the minor comes first, and no person is entitled to guardianship if the court thinks it is not in the child's welfare. Section 17 of the Guardians and Wards Act 1890 lists what the court looks at: the child's age, sex and religion, the character and capacity of the proposed guardian, nearness of kin, the wishes of a deceased parent, any existing relationship, and the child's own preference if old enough.

So the honest answer to the question is yes, a father can get custody, and many do. But he does not get it because he is the father or because he earns more. He gets it when the court is persuaded, on evidence, that living with him is better for the child. That depends on facts a father can prepare: his actual involvement, his home, his support system and his attitude towards the mother.

Fathers who are refused custody are rarely refused because the court is biased. Usually the record shows that the mother did most of the daily care, or that the father's case was about winning against the mother rather than about the child.

The laws a Delhi family court applies

When do courts give custody to the father?

Courts have given custody to fathers in a range of situations. The common thread is that the father's home offered the child more stability, care and continuity than the alternative. The most frequent cases are those where the father has in fact been the main carer: the mother worked long hours or travelled, or moved out leaving the child behind, and the child has lived with the father and his family for a long time.

The second group is where the mother is unable to care for the child, through serious illness, addiction or a situation that exposes the child to risk. Remarriage of the mother, a job in another city or a modest income are not, by themselves, reasons to deny her custody. Courts look for actual harm to the child, not a moral judgement about the mother.

The third group is where the mother has died and the maternal grandparents or other relatives keep the child. In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019), the Supreme Court upheld an order giving the child to the father against the mother's sisters, holding that the father as natural guardian was entitled to custody unless he was unfit. Section 19(b) of the Guardians and Wards Act points the same way. But in Nil Ratan Kundu v. Abhijit Kundu (2008), the Court left the child with the maternal grandparents because the father faced a criminal case over the mother's death and the child's welfare required it. Each case turns on its facts.

The fourth group involves older children who clearly and consistently want to live with their father, for reasons the court accepts as genuine and not the result of coaching. Courts also try not to separate siblings, so the custody of one child often follows another.

Custody of a minor son and the under-five rule

There is no rule in Indian law that a boy should live with his father. The custody of a minor son is decided on the same welfare test as a daughter's. Under Muslim personal law, the mother's right of custody (hizanat) for a son traditionally runs to the age of seven under the Hanafi school, but even there the Guardians and Wards Act applies and welfare decides.

What the law does have is the under-five rule. The proviso to Section 6(a) says a child under five shall ordinarily be in the mother's custody. "Ordinarily" is a strong word but not an absolute one. A father seeking custody of a three-year-old must show a serious reason why the mother's care is not in the child's interest. Without that, the realistic goal for a father of a young child is generous visitation, including overnight stays as the child grows, and joint decision-making on schooling and health.

As children grow, the balance changes. A nine or twelve-year-old son is usually interviewed by the judge in chambers, without either parent present. The judge looks at whether the child is expressing his own wish, why, and how settled he is in his school and routine. In Vivek Singh v. Romani Singh (2017), the Supreme Court gave custody to the mother even though the daughter said she wanted to stay with the father, because the child's preference appeared to be shaped by the environment she had been kept in. The lesson for fathers: a child's stated wish carries weight only if it is clearly the child's own.

What courts weigh in a custody case, and what a father can show

Interim custody and visitation: the orders that matter first

Final custody cases take time, and children do not wait. The orders that shape the outcome are often the interim orders in the first few months. Under Section 12 of the Guardians and Wards Act and Section 26 of the Hindu Marriage Act, a Delhi family court can order temporary custody, visitation on weekends, overnight stays, holiday sharing, and video calls on fixed days.

A father whose child has been taken away should apply for interim visitation at once. If months pass without contact, the child settles into a life without him, and the court later hesitates to disturb that. The Supreme Court in Yashita Sahu v. State of Rajasthan (2020) stressed that a child has a right to the love and company of both parents, and that video contact is part of visitation, not a substitute for it.

When Advocate B.K. Singh takes a father's custody brief, the first thing he asks for is not the marriage history but the child's routine over the last year: who woke the child, who did homework, who took leave when the child was ill. A father who can prove that daily involvement with school and medical records stands on firm ground. A father who can only show that he paid the fees has a much weaker case for custody, though he is still entitled to meaningful visitation.

Comply strictly with every interim order. Return the child on time, keep calls at the fixed hours, and never use a visit to question the child about the mother. Family courts in Delhi notice breaches, and a father who honours the schedule builds the record he needs for a larger share of time later. Our guide on how visitation rights work for parents in Delhi covers the practical side.

How a father applies for custody in Delhi, step by step

1. Collect the record of your care

   Gather school diaries, PTM attendance, fee receipts, medical files, photographs and messages that show your role in the child's daily life. Write a short log of the routine before separation.

2. Choose the right court and petition

   If divorce proceedings are pending, apply for custody in that case under Section 26 of the Hindu Marriage Act. If not, file a guardianship petition under Sections 7 and 25 of the Guardians and Wards Act in the family court where the child ordinarily resides.

3. Apply for interim relief with the petition

   Ask for interim custody or, more realistically for a young child, a clear visitation schedule with overnight stays and video calls. Ask that the child not be removed from Delhi or India without the court's permission if there is a risk.

4. Attend mediation and counselling

   Delhi's family courts refer most custody disputes to mediation and to counsellors. A parenting plan agreed there is often better for the child, and for you, than an imposed order.

5. Prepare for the child's interview

   If the child is old enough, the judge will speak to the child. Do not prepare or coach the child; courts can tell, and it damages the father's case.

6. Lead evidence and argue welfare

   Prove your home, support system and involvement through documents and witnesses. Address the mother's case honestly. Focus the argument on the child, not on the failings of the marriage.

7. Appeal within 30 days if needed

   If the final order goes against you, appeal to the Delhi High Court under Section 19 of the Family Courts Act within 30 days. Interim orders can sometimes be challenged by a petition under Article 227.

How long a custody case takes and what it costs

Documents a father should keep ready

Which court hears a father's custody case in Delhi?

A father custody case in Delhi, like any guardianship petition, goes to the family court of the district where the child ordinarily resides, under Section 9 of the Guardians and Wards Act. Delhi's family courts sit in the district court complexes at Saket, Tis Hazari, Karkardooma, Rohini, Dwarka and Patiala House, among others. Where the child was recently moved, the question of where the child "ordinarily resides" is decided on facts, as the Supreme Court explained in Ruchi Majoo v. Sanjeev Majoo (2011). A mother's recent move with the child does not automatically shift jurisdiction to her new city.

Where a divorce case is already pending, custody is usually decided in that case under Section 26 of the Hindu Marriage Act, in the family court hearing the divorce. Running two separate custody cases in two courts leads to conflicting orders and should be avoided; a transfer can be sought if needed.

The Delhi High Court comes in at three points. It hears appeals against final family court orders under Section 19 of the Family Courts Act. It can supervise interim orders through Article 227. And it hears habeas corpus petitions where a child is held in illegal custody, explained in our guide on habeas corpus petitions for child custody. For changing an existing order because circumstances have changed, see our guide on whether the Delhi High Court can change a child custody order. Our page on child custody cases at the Delhi High Court sets out how we handle these matters.

Mistakes fathers make in custody cases

• Waiting months before applying for visitation. Long gaps weaken the bond and the court's willingness to change the child's routine.
• Treating income as the main argument. Higher income is relevant to maintenance, not decisive for custody. Courts want to see care, not money.
• Coaching the child. Judges speak to children privately and quickly recognise rehearsed answers. It damages credibility badly.
• Badmouthing the mother. Courts favour the parent who supports the child's bond with the other parent. Hostile messages end up on the court file.
• Taking the child by force. Removing a child from the mother without a court order can lead to habeas corpus proceedings and counts against the father later.
• Mixing custody with maintenance. Stopping payments to pressure the mother harms the child and the father's case. The two issues are decided separately.

If the mother takes the child abroad or to another state

If you fear the child will be taken out of India, apply to the family court at once for an order restraining removal and directing that the child's passport be deposited. Inform the passport office and, where an order exists, the immigration authorities through the proper channel. India is not a party to the Hague Convention on child abduction, so getting a child back from abroad depends on the foreign court's view, and prevention is far easier than return.

If the child has already been removed to another country, the Supreme Court's approach in Nithya Anand Raghavan v. State of NCT of Delhi (2017) and Lahari Sakhamuri v. Sobhan Kodali (2019) applies in reverse cases too: Indian courts decide on the child's welfare, giving weight to any foreign order but not treating it as binding. Our guide on what to do if your spouse takes your child abroad covers both directions.

Within India, if the mother moves the child to another state against an existing order, the family court can enforce its order, and the High Court can be approached by habeas corpus. Where there is no order yet, file promptly in Delhi if the child ordinarily resided here before the move.

Shared parenting and what a realistic outcome looks like

Many fathers do better asking for shared parenting than for sole custody. Indian courts increasingly frame orders that give one parent primary residence while the other has substantial time: alternate weekends, a weekday dinner, half of school holidays, festivals shared by turn, and daily video calls. Joint decisions on school, health and travel can be written into the order.

Advocate B.K. Singh's advice to fathers in Delhi family courts is to put a detailed, workable parenting plan before the court early, built around the child's school timings and the distance between the two homes. A father who arrives with a concrete schedule that respects the mother's time is often given more than one who demands sole custody without a plan. The court sees which parent is thinking about the child.

Shared arrangements work only where both parents can communicate. Where there is violence or serious conflict, courts prefer clear schedules with handovers at a neutral place, sometimes at the family court premises, and supervised visits where safety is a concern.

What to do this week

Write down your child's routine over the past year and your part in it, and collect the school and medical records that prove it. If you have no contact with your child, file for interim visitation now rather than waiting for the main case. If there is any risk of removal from Delhi or India, ask for a restraint order and passport deposit in the same application.

Keep every message to the mother short, respectful and about the child. If a custody order has already been passed and you think it is wrong, note the date: the 30-day appeal period to the Delhi High Court runs from the order. Our page on appeals against family court orders explains that step, and our page on child custody and habeas corpus in Delhi covers urgent cases.

For advice on your own papers, or for updates on the law on father custody rights, you can contact Advocate B.K. Singh.