Child Custody in Divorce: How Courts in Delhi NCR Decide

The laws that govern custody

Custody questions in Delhi NCR are usually decided under one or more of the following:

• Section 26 of the Hindu Marriage Act, 1955, which allows the court hearing a matrimonial case to make interim and final orders on custody, maintenance and education of minor children, consistent with their wishes wherever possible.
• Section 38 of the Special Marriage Act, 1954, which contains an equivalent power for marriages under that Act.
• The Guardians and Wards Act, 1890, a general law that applies across religions. A parent can file a petition for custody or guardianship under it even where no divorce case is pending.
• The Hindu Minority and Guardianship Act, 1956, which sets out who is the natural guardian of a Hindu minor and declares, in Section 13, that the welfare of the minor is the paramount consideration.
• The Protection of Women from Domestic Violence Act, 2005, under which Section 21 allows temporary custody orders in favour of the aggrieved woman.

In Delhi NCR, custody and guardianship cases are heard by the Family Courts. Our pages on Delhi, Noida, Gurugram, Ghaziabad and Faridabad explain local court arrangements.

Welfare of the child: the guiding principle

Indian courts have repeatedly held that in custody matters the welfare of the child is the paramount consideration, and the rights of the parents come second. Welfare is understood broadly. It includes the child’s physical safety and health, emotional security, education, moral and ethical upbringing, stability of home and school, and the child’s relationship with both parents and the wider family.

Factors that courts commonly weigh include:

• the age and gender of the child, and any special needs;
• who has been the primary caregiver so far, and the child’s existing routine;
• the continuity of the child’s schooling, friendships and surroundings;
• each parent’s ability to provide care, time and a stable home (not merely their income);
• the child’s own wishes, where the child is old enough to form an intelligent preference;
• any history of violence, abuse, neglect or substance misuse; and
• each parent’s willingness to support the child’s relationship with the other parent.

A higher income alone does not decide custody. Where one parent earns more, the court may instead direct that parent to contribute more towards the child’s maintenance.

Natural guardianship and the “tender years” rule

Section 6 of the Hindu Minority and Guardianship Act names the father, and after him the mother, as natural guardian of a Hindu minor’s person and property. In Githa Hariharan v. Reserve Bank of India (1999), the Supreme Court read “after” to mean “in the absence of”, so that the mother can act as natural guardian when the father is not taking care of the child. The same provision says that custody of a child under five years shall ordinarily be with the mother.

These rules are a starting point, not a final answer. In every case, the court asks what serves the child’s welfare.

Kinds of custody orders

Physical custody

Which parent the child lives with day to day. The other parent usually receives visitation.

Legal custody

The right to take major decisions about the child’s education, health and upbringing. Courts may leave this with both parents even when physical custody is with one.

Joint or shared custody

Both parents share time with the child according to a schedule, for example alternating weeks or splitting school holidays. Courts have increasingly favoured shared parenting where the parents live reasonably close and can communicate, because it allows the child to maintain a meaningful relationship with both.

Visitation and access

Time with the non-custodial parent. It may include day visits, weekend or overnight stays, holiday time and video calls. Where there are concerns, visits can be supervised or held at a neutral place, such as a court’s child visitation room.

The process in a custody case

1. Application. Custody can be sought within a divorce case (under Section 26 HMA or Section 38 SMA) or by a separate petition under the Guardians and Wards Act. The Guardians and Wards Act petition is filed where the child ordinarily resides.
2. Interim orders. Because cases take time, the court usually decides interim custody and visitation early, so the child is not left in uncertainty.
3. Mediation and counselling. Family Courts in Delhi NCR commonly refer parents to mediation or counselling to agree a parenting plan.
4. Interaction with the child. Judges often speak to the child in chambers, without the parents present, to understand the child’s wishes and comfort.
5. Evidence and decision. If the parents cannot agree, the court takes evidence and decides, with detailed arrangements for residence, visitation, holidays, schooling and contact.

Child support

Both parents are responsible for supporting their children. The parent who does not have physical custody is usually directed to contribute towards the child’s living expenses, education and medical care. Child maintenance can be sought under the Hindu Marriage Act, the Hindu Adoptions and Maintenance Act, Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 or the Domestic Violence Act. Our alimony and maintenance page explains how amounts are assessed.

Custody when a parent lives abroad

Cross-border custody disputes raise distinct questions: which country’s court should decide, whether a foreign custody order will be followed, and whether a child should be returned to another country. In Nithya Anand Raghavan v. State (NCT of Delhi) (2017), the Supreme Court held that Indian courts decide such cases on the welfare of the child and are not bound to order return merely because a foreign court has passed an order. See our page on NRI divorce for related issues.

Practical suggestions for parents

• Keep children out of the dispute; courts take a poor view of a parent who turns a child against the other.
• Keep records of school reports, medical care and your involvement in daily routines.
• Follow interim visitation orders strictly, even while you are asking the court to change them.
• Consider a written parenting plan, particularly in a mutual consent divorce.

Custody issues often arise within a contested divorce. For short answers to other questions, see our divorce FAQ.

Last reviewed: September 2026. This page is general information about the law and is not legal advice. Laws, rules and court practice change; please take advice on your specific facts.