The short answer: in Delhi, child custody is decided by the Family Court under the Guardians and Wards Act, 1890 — the general law for every religion — read together with the Hindu Minority and Guardianship Act, 1956 where the parents are Hindu, or as part of a pending divorce case under section 26 of the Hindu Marriage Act. The single test the court applies, whatever the route, is the welfare of the child (बच्चे का हित) — not which parent “deserves” the child, and not simply which parent asks first. What follows is how that test actually plays out, and what the process looks like from filing to final order.
The two laws that apply, and how they fit together
The Guardians and Wards Act, 1890 is the umbrella statute — every custody or guardianship petition in India, regardless of religion, can be filed under it, before the District Court (in Delhi, the Family Court exercising that jurisdiction). For Hindu, Buddhist, Jain and Sikh families, the Hindu Minority and Guardianship Act, 1956 supplements it with more specific rules on who counts as a natural guardian and in what order. Where custody comes up inside an already-pending matrimonial case — a divorce, judicial separation or restitution petition under the Hindu Marriage Act — section 26 of that Act lets the same court decide custody, maintenance and education of the minor children as part of that proceeding, including interim orders while the main case is still running, rather than forcing a separate Guardians and Wards petition. Most parents going through a contested divorce in Delhi end up using this route simply because the case is already before the Family Court.
The welfare test — what it actually weighs
Indian courts have repeatedly held that the rights and preferences of either parent are secondary to the welfare of the child, and Delhi’s Family Courts apply that principle in practice, not just in the judgment’s opening paragraph. What “welfare” is taken to mean is broader than a single factor:
- The child’s physical safety, health and daily routine
- Emotional attachment to each parent, and the likely disruption of separating the child from the primary caregiver
- Continuity — the same school, home city and social circle carry real weight
- Each parent’s financial capacity and, separately, their actual time availability to raise the child day to day
- Any history of domestic violence, neglect or substance abuse
- The child’s own wishes, where the child is old enough to form an intelligent preference — courts commonly give real weight to this from around age nine, though there is no fixed statutory cut-off
No one factor decides the case on its own. A parent who earns more is not automatically preferred over one who is more available; a mother is not preferred purely for being the mother once the child is past the section 6(a) threshold discussed below.
The starting point for very young children
Section 6(a) of the Hindu Minority and Guardianship Act sets out that the custody of a child below five years should ordinarily be with the mother. This is a genuine presumption, not a formality — a father seeking custody of a child under five has to actively show why departing from it serves the child’s welfare, rather than simply demonstrating that he is a capable parent. “Ordinarily” is the operative word: courts have departed from it where the facts clearly required it, but it remains the default a custody petition for a young child has to work against or with.
Custody, guardianship and visitation are not the same thing
Guardianship is the wider right — decision-making authority over the child’s education, medical care and property, which can continue even where the other parent has day-to-day custody. Custody is narrower: physical care and daily control. Courts in Delhi commonly order one parent to have physical custody while giving the other defined visitation — weekends, holidays, video calls, sometimes supervised visits where the history between the parties calls for it — rather than treating custody as all-or-nothing. Joint custody, where the child genuinely alternates between both parents’ homes, remains less common in Indian practice than sole custody with visitation, though courts are increasingly willing to consider it in amicable separations where both parents can co-parent without conflict spilling onto the child.
How the process actually runs
A custody petition — whether filed independently under the Guardians and Wards Act or as an application inside a pending Hindu Marriage Act case — typically involves the Family Court calling for a Social Investigation Report, often through a court counsellor, that looks at both parents’ homes, routines and the child’s own views where age-appropriate. Section 9 of the Family Courts Act, 1984 also pushes the court toward conciliation first, so a mediation or settlement attempt is common before the matter is argued as a contested hearing. Where a child’s day-to-day situation cannot wait for the final hearing — a parent trying to relocate the child, or an access arrangement breaking down — interim custody or visitation can be sought and is usually decided faster than the final order, though there is no fixed statutory deadline for it the way the proviso to section 26 asks the court to decide applications for the maintenance and education of minor children, as far as possible, within 60 days of notice being served (section 24 has a similar 60-day proviso for a spouse’s interim maintenance).
Custody orders are not the end of the story
An existing custody order is not permanent in the way a completed property partition is. Either parent can apply to modify it later if circumstances genuinely change — a parent relocating, remarrying, or the child’s own needs shifting as they grow older — and the court applies the same welfare test again rather than simply enforcing the earlier order. This is worth knowing at the outset: an interim or first-round order is not necessarily the arrangement that lasts through the child’s minority.
Where this leaves you
Custody disputes move alongside — and are often decided within — the same divorce or maintenance proceeding, so they are rarely worth handling in isolation from the rest of the matrimonial case. Our advocates appear in custody and guardianship matters before the Family Courts at Saket and the other Delhi court complexes we practise at, usually alongside a connected divorce or maintenance application. Call 99115 44811 to discuss where your matter currently stands and what the realistic next step looks like.
This article explains the general position under the Guardians and Wards Act, 1890, the Hindu Minority and Guardianship Act, 1956 and section 26 of the Hindu Marriage Act, 1955, and does not constitute legal advice on any particular custody matter. No advocate can promise a particular custody outcome; every case turns on its own facts and the child’s specific circumstances.