Child Custody & Guardianship
Custody, visiting rights and guardianship before the Family Courts at Bangalore and the High Court of Karnataka, including matters where a child has been taken abroad or brought to India by one parent.
How custody is decided in Bangalore
In every custody dispute the deciding consideration is the welfare of the child. Section 13 of the Hindu Minority and Guardianship Act, 1956 makes the welfare of the minor paramount, and Section 17 of the Guardians and Wards Act, 1890 directs the court to be guided by it, having regard to the child's age, the character and capacity of each parent, and, where the child is old enough to form an intelligent preference, the child's own wishes. The rights of the parents matter, but each of them is weighed in terms of what is best for the child.
Custody is decided by the Principal Family Court and the Additional Family Courts at Bangalore, either within a divorce or other matrimonial case or in a separate guardianship petition, with appeals to the High Court of Karnataka. Where a child has been removed from one parent's care, the High Court may also be approached by way of habeas corpus.
Advocate Partha Sarkar
Custody and guardianship matters are led by Advocate Partha Sarkar, an advocate with a long-standing practice at the Bar, before the Family Courts at Bangalore and the High Court of Karnataka, including for parents living abroad.
Matters involving children are handled with particular care and confidentiality, and correspondence through this website does not create a lawyer-client relationship.
Custody During and After Divorce
Under Section 26 of the Hindu Marriage Act, 1955 the court hearing a divorce or other matrimonial case may make interim orders on the custody, maintenance and education of the children while the case is pending, and final orders in the decree, and may later revoke, suspend or vary them. Section 38 of the Special Marriage Act, 1954 contains a corresponding power.
Courts increasingly look for arrangements that keep the child connected with both parents: a primary home with one parent, with defined visiting time, holidays and contact with the other. In Yashita Sahu v. State of Rajasthan (2020) the Supreme Court recognised that a child is entitled to the love and company of both parents, and that contact by video call can supplement visiting rights where the parents live in different cities or countries.
Interim custody while the case is pending
Visiting rights and holiday arrangements
Joint and shared parenting terms
Custody terms in a mutual consent divorce
Guardianship Petitions
Where there is no matrimonial case, or where a parent needs a formal declaration as guardian, a petition is filed under the Guardians and Wards Act, 1890. Under Section 9, a petition concerning the guardianship of a child is filed in the court where the child ordinarily resides, which in Bangalore is the Family Court.
For Hindus, Section 6 of the Hindu Minority and Guardianship Act, 1956 names the father and then the mother as natural guardians, and provides that custody of a child below five ordinarily lies with the mother. In Githa Hariharan v. Reserve Bank of India (1999) the Supreme Court held that the mother may act as natural guardian even during the father's lifetime where he is not in charge of the child's affairs. Each of these rules yields to the child's welfare.
Guardianship petitions under the GWA 1890
Guardianship of a child's property
Custody claims of grandparents and relatives
Appeals to the High Court of Karnataka
When a Child Is Taken Abroad or Brought to India
India is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, so a child brought to India by one parent is not returned automatically. The parent left behind may approach the High Court of Karnataka by way of habeas corpus, or the Family Court for custody. An order of a foreign court is an important factor but not conclusive (Nithya Anand Raghavan v. State (NCT of Delhi), 2017), and the Supreme Court has in some cases directed a child's return, as in Lahari Sakhamuri v. Sobhan Kodali (2019).
Where there is a real risk that a child will be taken out of India, the court may be asked, in a pending case, to restrain the removal and to direct that the child's passport be deposited with it.
Habeas corpus in the High Court
Orders restraining removal from India
Foreign custody orders in India
Parents living abroad
NRI & Cross-Border Family Matters →
Changing an Existing Custody Order
Because custody depends on the child's welfare at any given time, a custody or visiting order is not final in the way most decrees are. Either parent may apply to vary it when circumstances change materially, for example a move to another city or country, a change in the child's needs or schooling, or a parent's failure to comply with visiting arrangements.
Variation of custody and visiting orders
Enforcement of visiting rights
Relocation of the child
Appeals and revisions
Applicable Laws: Guardians and Wards Act 1890, Hindu Minority and Guardianship Act 1956, Hindu Marriage Act 1955 (Section 26), Special Marriage Act 1954 (Section 38), Family Courts Act 1984, Protection of Women from Domestic Violence Act 2005 (Section 21), Constitution of India (Article 226).
Child Custody — Frequently Asked
How does a Family Court in Bangalore decide child custody?
The welfare of the child is the paramount consideration. Under Section 17 of the Guardians and Wards Act, 1890 and Section 13 of the Hindu Minority and Guardianship Act, 1956, the court looks at the child's age, the character and capacity of each parent, the stability each can offer, schooling, and, where the child is old enough to form an intelligent preference, the child's own wishes.
Does the mother always get custody of a young child?
Not always. Section 6 of the Hindu Minority and Guardianship Act, 1956 provides that custody of a child below five ordinarily lies with the mother, but this yields to the welfare of the child on the facts of each case. For older children there is no presumption in favour of either parent.
Can the parent who does not have custody see the child?
Ordinarily yes. Courts usually grant visiting rights, including holidays, so that the child keeps a relationship with both parents, unless that would harm the child. The Supreme Court in Yashita Sahu v. State of Rajasthan (2020) recognised that contact by video call can supplement visiting rights where the parents live apart.
My child has been taken abroad, or brought to India, by the other parent. What can be done?
India is not a party to the Hague Child Abduction Convention, so return is not automatic. The parent can approach the High Court of Karnataka by way of habeas corpus, or the Family Court for custody, and the court decides on the welfare of the child, treating any foreign court order as an important but not conclusive factor (Nithya Anand Raghavan v. State (NCT of Delhi), 2017).
Can a custody order be changed later?
Yes. Because custody depends on the child's welfare, either parent may apply to vary a custody or visiting order when circumstances change materially, such as relocation, a change in the child's needs, or non-compliance with visiting arrangements.
Enquiries on a matter in this area
The office can be reached for correspondence, including from abroad, on the details below. An enquiry does not create a lawyer-client relationship, and no advice is given until a matter is formally accepted.