When marriage breaks down and ends up in separation of spouse , the person(s) who suffers the foremost is the child. The Indian Law, while keeping in mind the parents’ right to the custody of a child , holds the welfare of the child because the most vital factor of consideration when deciding upon who gets the custody of a minor child.

What Are The Factors That Constitute “Welfare” Of Child ?

Welfare of the child , broadly, includes the subsequent factors:

Safe-keeping of the child

Ethical upbringing of the child

Good education to be imparted

Economic and Financial well-being of the parents

The mother and father both have an equal right to the custody of child. Who gets the custody of child, however may be a question which the court decides upon. While the statutes are conflicting when it involves personal laws as against secular enactment within the sort of The Guardian and Wards Act, 1890, the court strives to strike a balance between the two , all the while holding the welfare of child is of paramount importance. However, simply because the custody of a minor has been awarded to at least one parent, it doesn’t mean that the opposite parent cannot see or be in touch with the child. The courts in India are very strict to make sure that the child gets the love and care of both.

Types Of Child Custody Arrangements In India:

Court of competent jurisdiction in India orders the custody of child within the following three forms:

Physical Custody

Joint Custody

Legal Custody

Who Has The Priority Claim To The Custody Of A Child?

The Hon’ble Supreme Court and other courts in India have reiterated time and again that within the proceedings for custody of a minor, the welfare of the minor is that the only consideration, regardless of the claims of the parties to the custody.


The consideration of paramount importance during a proceeding for the custody of a minor is that the welfare of the kid. No right , preferential right or the other right holds more importance than the well-being of the child. Any court of law grants custody to the parent/ guardian who can assure the court that the welfare of the child best lies with them.

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