Yes — you can absolutely claim custody of your child even while your divorce case is pending in the family court. In India, the law recognizes the independent right of a parent to seek the custody, guardianship, and visitation rights of a child during the pendency of a matrimonial dispute like divorce. The family courts are empowered to pass interim and final custody orders based on the welfare, best interests, and well-being of the child, irrespective of the divorce proceedings.
Either parent can legally claim the custody of a minor child while a divorce case is pending in court. You can file a custody petition, interim custody application, or visitation rights application before the same family court where the divorce petition is pending or before a competent court under applicable guardianship laws. The court considers the best interest, welfare, comfort, education, and emotional well-being of the child before deciding such applications.
Let’s understand this entire issue in detail — covering legal provisions, procedures, principles, and judicial guidelines governing child custody during a pending divorce case in India.
Legal Provisions Governing Child Custody in India
The custody of a child in divorce and matrimonial disputes is primarily governed by:
Guardians and Wards Act, 1890
- Section 7: Empowers the court to appoint a guardian for the welfare of a minor.
- Section 17: Welfare of the child is paramount in custody decisions.
Hindu Minority and Guardianship Act, 1956 (for Hindus)
- Section 6: Natural guardians of a minor child — father, then mother.
- Section 13: Welfare of the child is the paramount consideration.
Special Marriage Act, 1954
- Section 38: Court’s power to decide custody, maintenance, and education of minor children in matrimonial cases.
Code of Civil Procedure, 1908
- Order XXXII-A Rule 3: Family courts empowered to deal with custody matters during matrimonial disputes.
Protection of Women from Domestic Violence Act, 2005
- Section 21: Custody orders can be passed by Magistrate courts in DV cases.
How to Claim Custody of the Child During a Pending Divorce?
You can approach the family court in two ways:
1. By Filing an Interim Custody Application
- Along with or after filing a divorce petition, you can move an application under Section 26 of the Hindu Marriage Act, 1955 or Section 7 of the Guardians and Wards Act, 1890.
- Request temporary custody of the child pending final disposal of the divorce petition.
- Court may also grant visitation rights to the non-custodial parent.
2. By Filing a Separate Custody Petition
- You can file an independent custody case under the Guardians and Wards Act, 1890 if no application is filed in the divorce case.
How Does the Court Decide Child Custody During Divorce?
The most important factor in deciding child custody is the welfare and best interest of the minor child — not the wishes of the parents.
Factors considered by the court:
- Age and gender of the child
- Child’s emotional, educational, and medical needs
- Financial and personal capacity of each parent
- Wishes of the child (if old enough to express preference)
- Nature of relationship with each parent
- Who has been the primary caregiver
- Physical and mental fitness of the parent
- Conduct and character of each parent
- Surrounding family environment
Key Principle:
As per Section 13 of the Hindu Minority and Guardianship Act, 1956 and judicial precedents, the welfare of the minor child is of paramount consideration and overrides all other factors.
Types of Child Custody in India
The courts can award different types of custody depending on circumstances:
Physical Custody
- Child resides with one parent.
- Visitation rights granted to the other parent.
Joint Custody
- Both parents take turns keeping the child.
- Common in progressive urban family court judgments.
Legal Custody
- Authority to make major decisions regarding child’s education, health, marriage.
- Can be shared even if physical custody is with one parent.
Third-Party Custody
- In exceptional cases, court can award custody to grandparents or relatives if both parents are deemed unfit.
What About Visitation Rights?
If you don’t have custody, you can still legally seek visitation rights by filing an application in the family court during the divorce case.
Visitation rights may include:
- Weekend meetings
- Holiday or vacation custody
- Video or phone calls
- Overnight stays, if appropriate
Important Supreme Court and High Court Judgments
Gaurav Nagpal vs Sumedha Nagpal (2009) 1 SCC 42
Held that:
“Welfare of the child is paramount and not the statutory right of either parent.”
Nil Ratan Kundu vs Abhijit Kundu (2008) 9 SCC 413
Observed:
“In determining child custody, the court must ascertain the wishes of the child if they are capable of making an intelligent preference.”
Can a Custody Order Be Changed Later?
Yes — custody orders are always subject to change based on circumstances.
Either parent can file a modification application if:
- Child’s welfare is compromised
- Parent with custody remarries
- Change in financial, medical, or living conditions
- Custodial parent relocates without permission
Conclusion
To conclude, you can legally claim custody of your child even if your divorce case is still pending. The family courts are empowered to pass interim and final custody orders by assessing the welfare, security, and best interest of the child.
Either parent can file for interim custody, permanent custody, or visitation rights during the divorce case. The court’s decision is based on multiple factors like the child’s needs, age, wishes, and parental capability — with the child’s welfare remaining the highest priority.
FAQs
Q. Can I file for child custody along with a divorce petition?
👉 Yes. Under Section 26 of the Hindu Marriage Act, 1955 or Section 7 of the Guardians and Wards Act, 1890.
Q. Will the mother automatically get custody of a child during divorce?
👉 No. Though generally young children’s custody is granted to mothers, courts decide based on the child’s welfare, irrespective of gender.
Q. Can a father get custody of a minor child?
👉 Yes, if the court finds it in the best interest of the child.
Q. Can child custody orders be changed later?
👉 Yes. Custody is always subject to the welfare of the child and can be altered upon fresh circumstances.
Q. Do I have to pay maintenance if I get child custody?
👉 The non-custodial parent usually pays maintenance, but it depends on mutual arrangements and court orders.
Would you like me to draft a sample child custody application format under Section 7 of the Guardians and Wards Act or Section 26 of the Hindu Marriage Act? I can prepare that for you — just let me know!
Important: Kindly Refer New Corresponding Sections of Bharatiya Nyaya Sanhita 2023, (BNS); Bharatiya Nagarik Suraksha Sanhita 2023, (BNSS); & Bharatiya Sakshya Adhiniyam 2023, (BSA) for IPC; CrPC & IEA used in the article.
Disclaimer: This information is intended for general guidance only and does not constitute legal advice. Please consult with a qualified lawyer for personalized advice specific to your situation.
Adcocate J.S. Rohilla (Civil & Criminal Lawyer in Indore)
Contact: 88271 22304